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Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 727–100 series airplanes. This AD is intended to complete certain mandated programs intended to support the airplane reaching its limit of validity (LOV) of the engineering data that support the established structural maintenance program. For certain airplanes, this AD requires repetitive inspections for cracking in stringers or frames until modification, and repair if necessary. We are issuing this AD to detect and correct cracking in stringers or frames originating at or near stringer-to-frame attachment fastener holes, which could result in reduced structural integrity of the airplane, and decompression of the cabin.
This AD is effective July 28, 2014.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 28, 2014.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Chandra Ramdoss, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5239; fax: 562–627–5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 727–100 series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (79 FR 13931, March 12, 2014) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 13931, March 12, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 13931, March 12, 2014).
We estimate that this AD affects 2 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary modifications that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these modifications:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 28, 2014.
None.
This AD applies to The Boeing Company Model 727–100 series airplanes, certificated in any category, as identified in Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991, unless previously modified using the service information specified in paragraphs (c)(1), (c)(2), or (c)(3) of this AD.
(1) Boeing Service Bulletin 727–53–0041, Revision 4, dated July 27, 1973.
(2) Boeing Service Bulletin 727–53–0041, Revision 5, dated January 25, 1990.
(3) Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991.
Boeing Service Bulletin 727–53–0041, Revision 4, dated July 27, 1973, is specified in Boeing Document D6–54860 “Aging Airplane Service Bulletin Structural Modification Program—Model 727,” Revision C, dated December 11, 1989, as mandated by AD 90–06–09, Amendment 39–6488 (55 FR 8370, March 7, 1990).
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD is intended to complete certain mandated programs intended to support the airplane reaching its limit of validity (LOV) of the engineering data that support the established structural maintenance program. We are issuing this AD to detect and correct cracking in stringers or frames originating at or near stringer-to-frame attachment fastener holes, which could result in reduced structural integrity of the airplane, and decompression of the cabin.
Comply with this AD within the compliance times specified, unless already done.
Before the accumulation of 16,000 total flight cycles, or within 3,000 flight cycles after the effective date of this AD, whichever occurs later, do a high frequency eddy current inspection and a general visual inspection for cracking in stringers and frames originating at or near stringer-to-frame attachment fastener holes, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991. Repeat the inspections thereafter at intervals not to exceed 6,000 flight cycles until the modification specified by paragraph (h) of this AD is accomplished. If any crack is found during any inspection required by this paragraph: Before further flight, repair or modify the affected stringer-to-frame attachment locations, in accordance with Part V, “Repair Data,” of the Accomplishment Instructions of Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991.
Modifying the affected stringer-to-frame attachment locations, in accordance with Part IV, “Preventive Modification Data,” of the Accomplishment Instructions of Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991, terminates the repetitive inspections required by paragraph (g) of this AD.
(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Chandra Ramdoss, Aerospace Engineer, Airframe Branch, ANM–120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5239; fax: 562–627–5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Service Bulletin 727–53–0041, Revision 6, dated September 5, 1991.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are superseding Airworthiness Directive (AD) 2003–05–03 for Bell Model 407 helicopters. AD 2003–05–03 required preflight checking and repetitively inspecting for a crack in certain tailbooms that have been redesigned, replacing the tailboom if there is a crack, modifying and re-identifying certain tailbooms, installing an improved horizontal stabilizer assembly, and assigning a 5,000 hour time-in-service (TIS) limit. This new AD retains the requirements of AD 2003–05–03 and requires additional inspection requirements. This AD was prompted by additional reports of cracked tailboom skins. The actions in this AD are intended to prevent separation of the tailboom and subsequent loss of control of the helicopter.
This AD is effective July 28, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 28, 2014.
The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of April 17, 2003 (68 FR 11967, March 13, 2003).
For service information identified in this AD, contact Bell Helicopter Textron Canada, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4, telephone (450) 437–2862 or (800) 363–8023, fax (450) 433–0272 or at
You may examine the AD docket on the Internet at
Sharon Miles, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137, telephone (817) 222–5110, fax (817) 222–5961, email
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2003–05–03 (68 FR 11967, March 13, 2003). AD 2003–05–03 applied to Bell Model 407 helicopters. The NPRM published in the
The NPRM was prompted by Canadian AD No. CF–2008–04, dated January 11, 2008 (AD CF–2008–04), issued by Transport Canada Civil Aviation (TCAA), which is the aviation authority for Canada, to correct an unsafe condition for Bell Model 407 helicopters. TCAA advises that there have been several reports of cracks to the tailboom skin on the left side in the area of the horizontal stabilizer. AD CF–2008–04 mandates new inspection requirements based on the manufacturer's service information discussed in the “Related Service Information” section under
We gave the public the opportunity to participate in developing this AD, but
The helicopter has been approved by the aviation authority of Canada and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, TCAA, its technical representative, has notified us of the unsafe condition described in the TCAA AD. We are issuing this AD because we evaluated all information provided by TCAA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design and that air safety and the public interest require adopting the AD requirements as proposed except we are removing one of the figures in this AD to meet current publication requirements. This change is consistent with the intent of the proposals in the NPRM (78 FR 41877, July 12, 2013), and will not increase the economic burden on any operator nor increase the scope of this AD.
This AD does not require you to contact the manufacturer. This AD does not state that replacing the affected tailboom with tailboom, part number (P/N) 407–030–801–201, –203, –205, or later numbers constitutes terminating action because installing other part-numbered tailbooms than those listed in the applicability of this AD may also result in terminating action for the requirements of this AD.
We reviewed Bell Technical Bulletin (TB) No. 407–01–33, dated August 29, 2001; Bell Alert Service Bulletin (ASB) No. 407–99–26, Revision B, dated June 14, 2001, and Revision C, dated February 28, 2002; Bell ASB No. 407–07–80, dated August 27, 2007; and Bell ASB No. 407–01–48, Revision C, dated August 27, 2007.
Bell issued TB No. 407–01–33 for certain serial-numbered Bell Model 407 helicopters to improve the installation of the horizontal stabilizer by specifying an inspection for and correction of any gaps between the horizontal stabilizer attachment supports and the stabilizer surface. Bell issued ASB No. 407–99–26, Revision B, to specify an inspection and a preflight check of the left-hand side of the tailboom skin and fasteners at the horizontal stabilizer attachment area for Bell Model 407 helicopters with certain part-numbered tailbooms. Bell later revised ASB No. 407–99–26 to Revision C to remove one part-numbered tailboom from the applicability of the ASB.
In ASB No. 407–07–80, Bell states it has received additional reports of cracked tailboom skins, P/N 407–030–801–157, affecting tailboom assemblies, P/N 407–530–014–101 and –103 (modified per AD 2003–05–03 (68 FR 11967, March 13, 2003), reference ASB No. 407–01–48, Revision B, dated April 25, 2002), and original production tailboom assembly, P/N 407–030–801–107. Each report indicated a crack above the left side upper stabilizer attachment support at Station 98.89. Further investigation conducted by Bell revealed other areas of the tailbooms require additional attention. Thus, ASB No. 407–07–080 contains procedures for preparing the tailboom for repetitive inspection, preflight checking the tailboom, and repetitively inspecting the tailboom. Bell specifies that replacing the affected tailboom assembly, P/N 407–530–014–101, –103 or 407–030–801–107, with tailboom assembly, P/N 407–030–801–201, –203, –205, or later dash numbers is terminating action for Bell ASB No. 407–07–80.
In ASB No. 407–01–48, Bell states that since issuing Revision C of ASB No. 407–99–26, it received additional reports of cracks in the upper skins, which originated from holes where the fasteners are installed at the forward and aft section of the left upper stabilizer support, P/N 407–023–800–117. ASB No. 407–01–48 contains procedures for inspecting the tailboom on the left side where the fasteners are installed, installing an improved horizontal stabilizer assembly, re-identifying the tailboom, and assigning a 5,000-hour TIS life limit to the tailboom.
We estimate that this AD will affect about 464 helicopters of U.S. registry. We estimate that operators will incur the following costs in order to comply with this AD. We estimate the time for conducting pilot checks is minimal and thus we are assuming there is no cost. It will take about .5 work-hour to perform the annotations in the helicopter records, 1.5 work hours to prepare the inspection area and do the magnification inspection, and 2.5 work hours to do the repetitive 100-hour TIS inspections at an average labor rate of $85 per work-hour. Based on these figures, we estimate the cost of the AD on U.S. operators will be $1,445 per helicopter and $670,480 for the U.S. operator fleet to do the checks and inspections, based on 6 repetitive inspections the first year. The previous AD affected 284 helicopters, and we estimated 3.5 work hours to do the initial inspection, 1.5 work hours to do the recurring inspections, and 18 work hours to do the modification at an average labor rate of $60 per work hour. Required parts were estimated at $1,244 per helicopter. Based on these figures, the total cost of the AD on U.S. operators was estimated to be $3,254 per helicopter or $924,136, based on 8 repetitive inspections per year.
According to Bell, the cost of a new tailboom is $82,850. Per Bell ASB No. 407–07–80, the costs to replace the tailboom may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Bell. We have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model 407 helicopters, serial numbers 53000 through 53475, with tailboom, part number (P/N) 407–030–801–101, –105, or –107, or 407–530–014–101 or –103, installed, certificated in any category.
This AD defines the unsafe condition as cracks in the tailboom skin on the left side in the area of horizontal stabilizer, which could result in separation of the tailboom and subsequent loss of control of the helicopter.
This AD supersedes AD 2003–05–03, Amendment 39–13079 (68 FR 11967, March 13, 2003).
This AD becomes effective July 28, 2014.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) For tailboom, P/Ns 407–030–801–101 and –105:
(i) Unmodified per Bell Alert Service Bulletin (ASB) 407–01–48, Revision C, dated August 27, 2007 (ASB 407–01–48):
(A) Before the first flight of each day, visually check the tailboom for a crack, as depicted in Figure 1 to Paragraph (f)(1)(i)(A) of this AD.
(B) For a tailboom with 600 or more hours time-in-service (TIS), within 25 hours TIS and thereafter at intervals not to exceed 50 hours TIS, visually inspect the tailboom for a crack using a 10X or higher magnifying glass by following the Accomplishment Instructions, Part II, of Bell ASB 407–99–26, Revision C, dated February 28, 2002, except this AD does not require you to contact Bell.
(ii) Within 600 hours TIS, but not later than 30 days:
(A) Modify and re-identify each tailboom, P/N 407–030–801–101 as 407–530–014–101, and P/N 407–030–801–105 as 407–530–014–103, by following the Accomplishment Instructions, Parts I and III, of ASB 407–01–48.
(B) Install improved horizontal stabilizer assembly, P/N 407–023–800–ALL, by following Bell Technical Bulletin No. 407–01–33, dated August 29, 2001, except this AD does not require you to contact Bell.
(2) For tailboom, P/Ns 407–530–014–101 and –103, and P/N 407–030–801–107:
(i) Before further flight after the tailboom is modified and re-identified, revise the Airworthiness Limitations section of the maintenance manual by establishing a retirement life of 5,000 hours TIS. Create a
(ii) Within 25 hours TIS or 30 days, whichever occurs first, prepare the tailboom for daily visual checks and recurring inspections and inspect the tailboom for a crack by following the Accomplishment Instructions, Part II, Steps 1.a) through 1.f), of Bell ASB 407–07–80, dated August 27, 2007 (ASB 407–07–80).
(iii) Thereafter, before the first flight of each day, clean the area on the tailboom where paint has been removed at the upper and lower attachment support areas of the horizontal stabilizer and visually check that area of the tailboom for a crack.
(iv) Within 100 hours TIS and thereafter at intervals not to exceed 100 hours TIS, using a 10X or higher power magnifying glass, inspect each tailboom for a loose rivet, a crack, skin corrosion, or any other damage, by following the Accomplishment Instructions, Part IV, Steps 1 through 6, of ASB 407–07–80, except this AD does not require you to contact Bell. If there is corrosion within an allowable tolerance, repair each area of corrosion.
(3) If there is a crack, before further flight, replace the tailboom.
(4) If there is no crack, make sure both of the inspection area surfaces are dry and protect each reworked area with a thin coat of clear coating.
(5) The actions required by paragraphs (f)(1)(i)(A) and (f)(2)(iii) of this AD may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9 (a)(1) through (4) and 91.417(a)(2)(v). This record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Sharon Miles, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
(1) Bell Alert Service Bulletin No. 407–99–26, Revision B, dated June 14, 2001, which is not incorporated by reference, contains additional information about the subject of this AD. For this service information, contact Bell Helicopter Textron Canada, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4, telephone (450) 437 2862 or (800) 363–8023, fax (450) 433–0272 or at
(2) The subject of this AD is addressed in Transport Canada Civil Aviation (TCCA) AD No. CF–2008–04, dated January 11, 2008. You may view the TCCA AD on the Internet at
Joint Aircraft Service Component (JASC) Code is 5300: Rotorcraft Tail Boom, and 5302: Middle Section.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on July 28, 2014.
(i) Bell Helicopter Textron Alert Service Bulletin (ASB) No. 407–01–48, Revision C, dated August 27, 2007.
(ii) Bell Helicopter Textron ASB No. 407–07–80, dated August 27, 2007.
(4) The following service information was approved for IBR on April 17, 2003 (68 FR 11967, March 13, 2003).
(i) Bell Helicopter Textron ASB No. 407–99–26, Revision C, dated February 28, 2002.
(ii) Bell Helicopter Textron Technical Bulletin No. 407–01–33, dated August 29, 2001.
(5) For Bell service information identified in this AD, contact Bell Helicopter Textron Canada, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4, telephone (450) 437–2862 or (800) 363–8023, fax (450) 433–0272 or at
(6) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding airworthiness directive (AD) 2006–11–19 for Dornier Luftfahrt GmbH Model Dornier 228–100, 228–101, 228–200, 228–201, 228–202, and 228–212 airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as chafed or damaged wiring on the flight deck overhead panels (5VE and 6VE). We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective July 28, 2014.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of July 28, 2014.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact RUAG Aerospace Services GmbH, Dornier 228 Customer Support, P.O. Box 1253, 82231 Wessling, Germany; telephone: +49 (0) 8153–30 2220; fax: +49 (0) 8153–30 4258; email:
Karl Schletzbaum, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4146; fax: (816) 329–4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to Dornier Luftfahrt GmbH Model DORNIER LUFTFAHRT GmbH Models Dornier 228–100, 228–101, 228–200, 228–201, 228–202, and 228–212 airplanes. The NPRM was published in the
Since we issued AD 2006–11–19, Amendment 39–14624 (71 FR 32268; June 5, 2006), DORNIER LUFTFAHRT GmbH changed the compliance time between repetitive inspections and incorporated those inspections into the Time Limits/Maintenance Checks Manual (TLMCM).
The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states that:
RUAG Aerospace Services GmbH issued Time Limits/Maintenance Checks Manual (TLMCM) TM–TLMCM–090305–ALL, Revision 5 dated 20 March 2011 respectively TM–TLMCM–228–00002–150610, Revision 1 dated 03 March 2011, listing component life limits and describing maintenance instructions for the Dornier 228 type design. The Document TM–TLMCM–228–00002–150610 is valid for airplane SN 8300 and up and other airplane SN modified according to CN–228–247. The instructions contained in that manual have been identified as mandatory actions for continued airworthiness.
In 2005, chafed wiring was found on 5VE Panel due to lost adhesive of the TY–RAP holder and subsequent vibration of the cable harness.
To address this potential unsafe condition, RUAG issued All Operators Telefax (AOT) No. AOT–228–24–028 and Temporary Revision (TR) 05–05 of the TLMCM introducing repetitive of the cockpit overhead panels 5VE and 6VE and, depending on findings, corrective actions(s). Subsequently, LBA issued AD D–2005–438 (EASA approval 2005–6430) to require those actions.
Since that AD was issued, the instructions of TR 05–05 have been incorporated into TM–TLMCM–090305–ALL, Revision 5 dated 20 March 2011 respectively into TM–TLMCM–228–00002–150610, Revision 1 dated 03 March 2011.
For the reasons described above, this AD retains the requirements of EASA AD D–2005–438, which is superseded, and requires the implementation of the life limits and maintenance actions as specified in the TLMCM (TM–TLMCM–090305–ALL respectively TM–TLMCM–228–00002–150610) for zone 321 overhead panels 5VE/6VE.
The MCAI can be found in the AD docket on the Internet at:
After the NPRM was issued, we identified that we inadvertently omitted the calendar time compliance for the inspections of the wiring in the flight deck overhead panels. We issued a supplemental notice of proposed rulemaking (SNPRM) to propose adding the calendar time compliance for the inspections of the wiring in the flight deck overhead panels. The SNPRM was published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM (79 FR 12131, March 4, 2014) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the SNPRM (79 FR 12131, March 4, 2014) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the SNPRM (79 FR 12131, March 4, 2014).
We estimate that this AD will affect 17 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,890 or $170 per product.
In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $1,000, for a cost of $1,255 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective July 28, 2014.
This AD supersedes AD 2006–11–19, Amendment 39–14624 (71 FR 32268; June 5, 2006).
This AD applies to Dornier Luftfahrt GmbH Dornier Models 228–100, 228–101, 228–200, 228–201, 228–202, and 228–212 airplanes, all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 5: Time Limits.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as chafed or damaged wiring on the flight deck overhead panels (5VE and 6VE). We are issuing this AD to prevent chafing and damage to the wiring in the flight deck overhead panels, which could result in short-circuiting of related wiring and possibly lead to electrical failure of affected systems and potential fire in the flight deck.
Unless already done, do the following actions in paragraphs (f)(1) through (f)(3) of this AD:
(1) Within the next 600 hours time-in-service (TIS) after July 28, 2014 (the effective date of this AD) or within the next 12 months after July 28, 2014 (the effective date of this AD), whichever occurs first, and repetitively thereafter at intervals not to exceed 600 hours TIS or 12 months, whichever occurs first, inspect the wiring in the flight deck overhead panels, 5VE and 6VE, for chafing, damage, and/or incorrect installation (wire tie attachment holders). For the inspection, refer to:
(i) Zone 321 on page 5, dated May 1, 2006, in section 05–22–10, Zonal Inspection Program, in Chapter 05, Time Limits/Maintenance Checks—General, in RUAG Aerospace Services GmbH Dornier 228 Time Limits/Maintenance Checks Manual (TLMCM), TM–TLMCM–090305–ALL, Revision 5, March 20, 2011;
(ii) Zone 321 on page 5, dated May 1, 2006, in section 05–26–10, Low Utilization Zonal Inspection Program, in Chapter 05, Time Limits/Maintenance Checks—General, in RUAG Aerospace Services GmbH Dornier 228 Time Limits/Maintenance Checks Manual (TLMCM), TM–TLMCM–090305–ALL, Revision 5, March 20, 2011;
(iii) Pages 1 through 10, Overhead Panel 5VE—Description, dated November 25, 2009, in subject 31–10–07, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(iv) Pages 201 through 208, Overhead Panel 5VE—Maintenance Practices, dated November 25, 2009, in subject 31–10–07, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(v) Pages 1 and 2, Overhead Panel 6VE—Description, in subject 31–10–08, dated November 25, 2009, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(vi) Pages 201 through 204, Overhead Panel 6VE—Maintenance Practices, in subject 31–10–08, dated November 25, 2009, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012.
(2) If any chafed or damaged wires are found during any inspection required in paragraph (f)(1) of this AD, before further flight, repair the affected wire(s) and assure correct installation of the wiring in the flight deck overhead panels by reattaching or replacing the wire tie attachment holders and securing any loose wires to the wire tie attachment holders with plastic wire ties following:
(i) Pages 1 through 10, Overhead Panel 5VE—Description, dated November 25, 2009, in subject 31–10–07, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(ii) Pages 201 through 208, Overhead Panel 5VE—Maintenance Practices, dated November 25, 2009, in subject 31–10–07, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(iii) Pages 1 and 2, Overhead Panel 6VE—Description, in subject 31–10–08, dated November 25, 2009, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012;
(iv) Pages 201 through 204, Overhead Panel 6VE—Maintenance Practices, in subject 31–10–08, dated November 25, 2009, of Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012.
(3) To comply with the actions of this AD, you may insert a copy of this AD or a copy of the required actions of this AD into the instructions for continued airworthiness section of the FAA-approved maintenance program (e.g., maintenance manual). This action may be done by an owner/operator (pilot) holding at least a private pilot certificate and must be entered into the airplane records showing compliance with this AD in accordance with 14 CFR 43.9 (a)(1)(4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.173 or 135.439.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2013–0244, dated October 4, 2013, for related information. You may examine the MCAI on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Chapter 05, Time Limits/Maintenance Checks—General, in RUAG Aerospace Services GmbH Dornier 228 Time Limits/Maintenance Checks Manual (TLMCM), TM–TLMCM–090305–ALL, Revision 5, March 20, 2011:
(A) Page 5, in section 05–22–10, Zonal Inspection Program, dated May 1, 2006;
(B) Page 5, in section 05–26–10, Low Utilization Zonal Inspection Program, dated May 1, 2006.
(ii) Chapter 31, Indicating/Recording Systems, in RUAG Aerospace Services GmbH Dornier 228 Airplane Maintenance Manual, TM–AMM–228–00014–080184, Revision 3, October 30, 2012:
(A) Pages 1 through 10, Overhead Panel 5VE—Description, in subject 31–10–07, dated November 25, 2009;
(B) Pages 201 through 208, Overhead Panel 5VE—Maintenance Practices, in subject 31–10–07, dated November 25, 2009;
(C) Pages 1 and 2, Overhead Panel 6VE—Description, in subject 31–10–08, dated November 25, 2009;
(D) Pages 201 through 204, Overhead Panel 6VE—Maintenance Practices, in subject 31–10–08, dated November 25, 2009.
(3) For service information identified in this AD, contact RUAG Aerospace Services GmbH, Dornier 228 Customer Support, P.O. Box 1253, 82231 Wessling, Germany; telephone: +49 (0) 8153–30 2220; fax: +49 (0) 8153–30 4258; email:
(4) You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329–4148.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
The action amends the expiration date of the final rule requiring pilots flying civil helicopters under Visual Flight Rules to use the New York North Shore Helicopter Route when operating along the north shore of Long Island, New York. The current rule expires on August 6, 2014. The FAA finds it necessary to extend this rule for an additional two years to preserve the current operating environment in order to determine whether the mandatory use of this route should be made permanent. The FAA will conduct notice and comment rulemaking on the permanent use of this route. A limited extension of the current rule provides needed time to conduct the appropriate analysis to assess the rule's impact and proper rulemaking procedures.
This final rule is effective August 6, 2014, through August 6, 2016.
For technical questions concerning this action, contact David Maddox, Airspace Regulation and ATC Procedures Group, AJV–113, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202–267- 8783; email
For legal questions concerning this action, contact Lorelei Peter, International Law, Legislation and Regulations Division, AGC–200, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone 202–267–3073; email
The FAA's authority to issue rules on 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.
The FAA has broad authority and responsibility to regulate the operation of aircraft, the use of the navigable airspace and to establish safety standards for and regulate the certification of airmen, aircraft, and air carriers. (49 U.S.C. 40104 et seq., 40103(b)). The FAA's authority for this rule is contained in 49 U.S.C. 40103 and 44715. Under section 40103, the Administrator of the FAA has authority to “prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for * * * (B) protecting individuals and property on the ground. (49 U.S.C. 40103(b)(2)). In addition, section 44715(a), provides that to “relieve and protect the public health and welfare from aircraft noise,” the Administrator of the FAA, “as he deems necessary, shall prescribe * * * (ii) regulations to control and abate aircraft noise * * *.”
In response to concerns from local residents regarding noise from helicopters operating over Long Island, the FAA adopted the New York North Shore Helicopter Route final rule (77 FR 39911). The rule is based on a voluntary Visual Flight Rule (VFR) route that was developed by the FAA working with the Eastern Region Helicopter Council. The rule requires civil helicopter pilots operating under VFR, whose route of flight takes them over the north shore of Long Island between the VPLYD waypoint and Orient point, to use the North Shore Helicopter Route, as published in the New York Helicopter Chart.
The current rule terminates on August 6, 2014. The FAA limited the duration of the rule because at the time of promulgation the FAA did not know the current rate of compliance with the voluntary route or the circumstances surrounding an operator's decision to not use the route. The FAA concluded that “There is no reason to retain this rule if the FAA determines that it is not actually improving the noise situation along the north shore of Long Island.”
This action extends the requirement for pilots of civil helicopters to use the North Shore Helicopter Route when transiting along the north shore of Long Island for an additional two years, while the FAA considers whether to make the mandatory use of the route permanent. The current rule requiring use of the route expires on August 6, 2014. Public input to this consideration is critical and additional time is needed to conduct the rulemaking process. However, the FAA does not want to disrupt the operating environment and cause any confusion on using the route during this interim period. Therefore, the FAA finds that a two year extension of the current rule is warranted to maintain the current operating environment and permit the agency to engage in rulemaking to determine future action on this route. The FAA expects to issue a Notice of Proposed Rulemaking on the permanent use of this route in the immediate future. The FAA finds that under Title 5 of the United States Code section 553(b) good cause exists that notice and public comment are impracticable and contrary to the public interest.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this extension. The reasoning for this determination follows.
Since this rule only extends the current requirements for pilots of civil helicopters to use the North Shore Helicopter Route when transiting along the north shore of Long Island for an additional two years, the expected outcome will be a minimal impact and a regulatory evaluation was not prepared.
The FAA has therefore determined that this extension is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This final rule will maintain the current operating environment for two years, therefore the FAA maintains that it will only have a minimal impact on any small entity affected by this rulemaking action.
The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it would have only a domestic impact and therefore no effect on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. 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 312f. This action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267–9680. Commenters must identify the docket or amendment number of this rulemaking.
All documents the FAA considered in developing this rulemaking action, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Air traffic control, Airspace, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends chapter I.
49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 44514, 44701, 44715, 44719, 46301.
This subpart prescribes a special air traffic rule for civil helicopters operating VFR along the North Shore, Long Island, New York, between August 6, 2012 and August 6, 2016.
Office of Justice Programs, Justice.
Final rule.
The Office of Justice Programs (OJP) of the U.S. Department of Justice is amending its regulation defining “Spouse” for purposes of implementing the Public Safety Officers' Benefits (PSOB) Act, associated statutes, and Program. Prior to the Supreme Court invalidating section 3 of the Defense of Marriage Act (DOMA) DOMA prevented OJP from recognizing same-sex surviving spouses for the purposes of awarding PSOB Act benefits. As amended, the final regulation recognizes as a spouse, for purposes of the PSOB program, a person who lawfully enters into a marriage in one jurisdiction, even when living in another jurisdiction, and without regard to the law of the other jurisdiction.
Effective July 23, 2014.
Hope Janke, Bureau of Justice Assistance (BJA), OJP, at (202) 514–6278, or toll-free at 1 (888) 744–6153.
In a document published in the
We received several comments regarding the scope of the proposed definition of spouse. Concerned that the new rule would have no effect on states that do not allow same-sex marriage, or only allow common law marriages, one commentator suggested that OJP revise the rule to include in the definition of a spouse those persons in a same-sex relationship for ten or more years. Two commentators suggested that OJP expand the proposed definition of spouse to include persons in other “legally recognized” or “non-marriage legal unions” such as civil unions and domestic partnerships.
OJP's current and proposed definition of spouse are premised on its interpretation of the laws authorizing payment of benefits to surviving spouses, e.g., 42 U.S.C. 3796(a), as requiring that an individual must be in a valid marriage to be considered a spouse. Accordingly, we make no change to the proposed rule based on the comments.
Citing various concerns that a legal relationship between a parent and child, as determined by state law, is often necessary to establish eligibility as a “child” for federal benefits, one commentator recommended that OJP expand its definition of “stepchild” to include the child of a parent standing
Current OJP regulations define an adopted child as an individual (1) legally adopted by the public safety officer (PSO), or (2) known by the PSO not to be his or her biological child, and in a parent-child relationship with the PSO despite such knowledge.
One commentator, citing concerns about possible bias of state-level claims processors, suggested that OJP revise § 32.3 by adding to the definition of parent-child relationship the following language: “A parent-child relationship should be assessed without regard to the sexual orientation or gender identity of the parties involved.”
OJP disagrees that such change is necessary. Apart from a hearing that may be conducted locally by OJP appointed hearing officers,
Asserting that the proposed definition of spouse was contrary to the federalism framework in
The Federalism Assessment contemplated by Executive Order 13132 (1999) involves a determination as to whether a proposed rule would have
The
This rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The costs of implementing this rule would be minimal, as it would impose no costs on state, local, or tribal governments, or on the private sector.
The Office of Justice Programs has determined that this rule is not a “significant regulatory action” under section 3(f) of the Executive Order, and accordingly this rule has not been reviewed by the Office of Management and Budget.
This rule would not have substantial direct effects on the States, on the relationship between the federal government and the States, or on distribution of power and responsibilities among the various levels of government. The PSOB program provides benefits to individuals and does not impose any special or unique requirements on States or localities. Therefore, in accordance with Executive Order No. 13132, OJP has determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This rule meets the applicable standards set forth in sections 3(a) & (b)(2) of Executive Order No. 12988. Pursuant to section 3(b)(1)(I) of the Executive Order, nothing in this rule or any previous rule (or in any administrative policy, directive, ruling, notice, guideline, guidance, or writing) directly relating to the program that is the subject of this rule is intended to create any legal or procedural rights enforceable against the United States, except as may be contained within part 32 of title 28 of the Code of Federal Regulations.
This rule would not have a significant economic impact on a substantial number of small entities for the following reasons: this rule addresses federal agency procedures; furthermore, this rule would make amendments to clarify existing regulations and agency practice concerning public safety officers' death, disability, and education benefits and would do nothing to increase the financial burden on any small entities. Therefore, an analysis of the impact of this rule on such entities is not required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This rule would not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
This rule would not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. The PSOB program is a federal benefits program that provides benefits directly to qualifying individuals. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Administrative practice and procedure, Claims, Disability benefits, Education, Emergency medical services, Firefighters, Law enforcement officers, Reporting and recordkeeping requirements, Rescue squad.
Accordingly, for the reasons set forth in the preamble, part 32 of chapter I of Title 28 of the Code of Federal Regulations is amended as follows:
42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a), 3787, 3788, 3791(a), 3793(a)(4) & (b), 3795a, 3796c–1, 3796c–2; sec. 1601, title XI, Pub. L. 90–351, 82 Stat. 239; secs. 4 through 6, Pub. L. 94–430, 90 Stat. 1348; secs. 1 and 2, Pub. L. 107–37, 115 Stat. 219.
(1) On the date of the officer's death, with respect to a claim under subpart B of this part or by virtue of such death; or
(2) As of the injury date, with respect to a claim not under subpart B of this part or by virtue of the officer's death.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation for the waters of the Tennessee River beginning at mile marker 464.0 and ending at mile marker 465, extending bank to bank. This zone is necessary to protect participants of the “Chattanooga Waterfront Triathlon” during the swim portion of the event. Entry into this area is prohibited unless specifically authorized by the Captain of the Port (COTP) Ohio Valley or designated representative.
This rule is effective from 7:00 a.m. to 9:30 a.m. June 29, 2014.
Documents mentioned in this preamble are part of docket [USCG–2014–0323]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call Petty Officer Chad Phillips, Marine Safety Detachment Nashville, at (615) 736–5421 or email at
This event and special local regulation is currently listed under 33
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The swim portion of the “Chattanooga Waterfront Triathlon” takes place on the Tennessee River from mile markers 464.0 to 465.0. The Coast Guard determined that a temporary special local regulation is needed to protect the 1500 participants in the “Chattanooga Waterfront Triathlon” during the swimming portion. The legal basis and authorities for this rulemaking establishing a special local regulation are found in 33 U.S.C. 1233, which authorizes the Coast Guard to establish and define special local regulations. The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 464.0 and ending at mile marker 465.0 to protect the participants in the swimming portion of the “Chattanooga Waterfront Triathlon.” Entry into this area is prohibited unless specifically authorized by the COTP Ohio Valley or designated representative.
The COTP Ohio Valley is establishing a special local regulation for the waters of the Tennessee River, beginning at mile marker 464.0 and ending at mile marker 465.0, during the swimming portion of the “Chattanooga Waterfront Triathlon” on June 29, 2014. During this event, vessels shall not enter into, depart from, or move within the regulated area without permission from the COTP Ohio Valley or his authorized representative. Persons or vessels requiring entry into or passage through the regulated area must request permission from the COTP Ohio Valley, or a designated representative. Sector Ohio Valley may be contacted on VHF–FM Channel 13 or 16, or 1–800–253–7465. This rule is effective from 7:00 a.m. to 9:30 a.m. June 29, 2014. The COTP Ohio Valley will inform the public through Broadcast Notices to Mariners (BNM) of the enforcement period for the special local regulation as well as any changes in the planned schedule.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.
This special local regulation restricts transit on the Tennessee River from mile marker 464.0 to mile marker 465.0 and covers a period of two and one half hours, from 7:00 a.m. to 9:30 a.m. on June 29, 2014. Due to its short duration and limited scope, it does not pose a significant regulatory impact. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area or deviate from this regulation. Requests to deviate from this regulation will be considered on a case-by-case basis.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit mile marker 464.0 to mile marker 465.0 on the Tennessee River, from 7:00 a.m. to 9:30 a.m. on June 29, 2014. The special local regulation will not have a significant economic impact on a substantial number of small entities because this rule will be in effect for a short period of time. BNMs will also inform the community of this special local regulation so that they may plan accordingly for this short restriction on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted area.
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
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a state, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves establishing a temporary special local regulation to protect the participants in the swimming portion of the “Chattanooga Waterfront Triathlon” on the Tennessee River from mile markers 464.0 to mile marker 465.0 for two and one half hour period on one day.
An environmental analysis was performed during the marine event permit process for the swimming event and a checklist and a categorical exclusion determination are not required for this special local regulation.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR Part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(2) Persons or vessels requiring entry into or passage through the area must request permission from the Captain of the Port Ohio Valley or a designated representative. U.S. Coast Guard Sector Ohio Valley may be contacted on VHF Channel 13 or 16, or at 1–800–253–7465.
(3) All persons and vessels shall comply with the instructions of the Captain of the Port Ohio Valley and designated U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
(d)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Safety Zone for the Duluth Fourth Fest Fireworks in Duluth, MN from 7 p.m. through 11 p.m. on July 4, 2014. This action is necessary to protect spectators during the Duluth Fourth Fest Fireworks show. During the enforcement period, entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative.
The regulations in 33 CFR 165.943(b) will be enforced from 7 p.m. through 11 p.m. on July 4, 2014 for the Duluth Fourth Fest Fireworks safety zone described in § 165.943(a)(3).
If you have questions on this document, call or email LT Judson Coleman, Chief of Waterways Management, Coast Guard; telephone (218) 725–3818, email
The Coast Guard will enforce the safety zone for the annual Duluth Fourth Fest Fireworks in 33 CFR 165.943(a)(3) from 7 p.m. through 11 p.m. July 4, 2014 on all U.S. navigable waters of the Duluth Harbor Basin Northern Section within a 900-foot radius of position 46°46′19.00″ N, 092°06′11.00″ W.
Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth or his designated on-scene representative. The Captain of the Port's designated on-scene representative may be contacted via VHF Channel 16.
This document is issued under authority of 33 CFR 165.943 and 5 U.S.C. 552(a). In addition to this publication in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary Rule; Modification of Closure.
NMFS is opening directed fishing for northern rockfish in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2014 total allowable catch (TAC) of northern rockfish in the BSAI.
Effective 1200 hrs, Alaska local time (A.l.t.), June 22, 2014, through 2400 hrs, A.l.t., December 31, 2014. Comments must be received at the following address no later than 4:30 p.m., A.l.t., July 3, 2014.
You may submit comments on this document, identified by NOAA–NMFS–2013–0152, by any of the following methods:
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Steve Whitney, 907–586–7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Pursuant to the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014), NMFS closed the directed fishery for northern rockfish under § 679.2(d)(1)(iii).
As of June 11, 2014, NMFS has determined that approximately 1,887 metric tons of northern rockfish initial TAC remains unharvested in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2014 TAC of northern rockfish in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for northern rockfish in the BSAI. This will enhance the socioeconomic well-being of harvesters in this area. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) the current catch of northern rockfish in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for northern rockfish in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until July 3, 2014.
This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
U.S. Office of Personnel Management.
Proposed rule.
The U.S. Office of Personnel Management (OPM) is proposing to revise the definition of
Comments must be received on or before August 22, 2014.
You may submit comments, identified by RIN number “3206–AM90,” using either of the following methods:
Kurt Springmann by telephone at (202) 606–2858 or by email at
The U.S. Office of Personnel Management (OPM) is issuing a proposed regulation to revise the definition of
Two Federal agencies administer regulations governing FMLA. The Department of Labor (DOL) issues regulations for title I of the FMLA, which covers non-Federal employees and certain Federal employees not covered by title II. OPM issues regulations for title II of the FMLA, which covers most Federal employees. Title II of the FMLA directs OPM to prescribe regulations that are consistent, to the extent appropriate, with regulations prescribed by the Secretary of Labor to carry out title I of the FMLA. (See 5 U.S.C. 6387.)
On July 23, 1993, OPM issued interim regulations (58 FR 39596) to implement title II of FMLA. The interim regulations adopted the definition of
On September 21, 1996, the Defense of Marriage Act (DOMA) was enacted. Section 3 of DOMA defined the terms
On June 26, 2013, the United States Supreme Court ruled in
In this regulation, OPM proposes to change the definition of
Under this definition, an employee who is legally married to a same-sex spouse in one State and who resides or works in a State where the marriage is not legally recognized may use FMLA leave for his or her spouse. This proposed regulation deviates from DOL's current regulatory definition of
OPM believes that this definition of spouse is appropriate for the Federal workforce and that Federal employees would benefit from this broader definition. To support an agency's mission, employees may be stationed in a State other than the State of their marriage, and, at times, relocated throughout the United States and abroad. Accordingly, consistent with DOL's Notice of Proposed Rulemaking, OPM believes that using this definition of spouse will enable the Federal Government to consider the needs of a diverse workforce and provide consistent application of policy across the Federal Government. Uniform treatment of all Federal employees will make it more likely that employees will accept voluntary details and transfers to States where a same-sex marriage is not recognized.
By clarifying that a same-sex spouse qualifies as a spouse for purposes of the FMLA, children of an employee's same-sex spouse now qualify as stepchildren because their parents are in a legal same-sex marriage. Same-sex spouses who stand in loco parentis to the spouse's child are already entitled to take FMLA leave to care for the child. Additionally, the proposed rule clarifies that same-sex spouses are able to take leave to care for their spouse's child by virtue of being the child's stepparent regardless of whether they stand in loco parentis. For information about the ability of employees to take FMLA leave for the children of their domestic partners, employees should review the OPM memorandum CPM 2010–15, sent to agencies on August 31, 2010, titled “Interpretation of `Son or Daughter' Under the Family and Medical Leave Act,” available at
We are also proposing conforming amendments to revise the definition of
The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and 12866.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will apply only to Federal agencies and employees.
Government employees.
Accordingly, OPM proposes to amend 5 CFR part 630 as follows:
5 U.S.C. 6311; § 630.205 also issued under Pub. L. 108–411, 118 Stat 2312; § 630.301 also issued under Pub. L. 103–356, 108 Stat. 3410 and Pub. L. 108–411, 118 Stat 2312; § 630.303 also issued under 5 U.S.C. 6133(a); §§ 630.306 and 630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102–484, 106 Stat. 2722, and Pub. L. 103–337, 108 Stat. 2663; subpart D also issued under Pub. L. 103–329, 108 Stat. 2423; § 630.501 and subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I also issued under 5 U.S.C. 6332, Pub. L. 100–566, 102 Stat. 2834, and Pub. L. 103–103, 107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L 100–566, and Pub. L. 103–103; subpart K also issued under Pub. L. 105–18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and Pub. L. 103–3, 107 Stat. 23; and subpart M also issued under 5 U.S.C. 6391 and Pub. L. 102–25, 105 Stat. 92.
(1) Was entered into in a State that recognizes such marriages; or
(2) If entered into outside of any State, was valid in the place where entered into and could have been entered into in at least one State.
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule invites comments on changes to the minimum grade requirements currently prescribed under the Florida avocado marketing order (order) and a technical correction to the avocado import regulation. The order regulates the handling of avocados
Comments must be received by July 23, 2014.
Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Fax: (202) 720–8938; or Internet:
Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA; Telephone: (863) 324–3375, Fax: (863) 325–8793, or Email:
Small businesses may request information on complying with this regulation by contacting Jeffrey Smutny, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720–2491, Fax: (202) 720–8938, or Email:
This proposal is issued under Marketing Order No. 915, as amended (7 CFR part 915), regulating the handling of avocados grown in South Florida, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the “Act.”
This proposed rule is also issued under section 8e of the Act, which provides that whenever certain specified commodities, including avocados, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities.
The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of import regulations issued under section 8e of the Act.
This proposal invites comments on revisions to the grade requirements currently prescribed under the order and the avocado import regulation. This proposed rule would remove language permitting the commingling of avocados with dissimilar characteristics for shipment within the production area. This would require all avocados shipped within the production area to meet the provisions of a U.S. No. 2 grade, as provided in the United States Standards for Grades of Florida Avocados. This rule would also make a technical correction to the avocado import regulation to clarify that the minimum grade requirement for imported avocados remains unchanged at a U.S. No. 2.
Section 915.51 of the order provides, in part, authority to issue regulations establishing specific grade and pack requirements for avocados. Section 915.52 of the order provides authority for the modification, suspension, or termination of established regulations.
Section 915.306 of the order's container and pack regulations prescribe grade, pack, and container marking requirements for Florida avocados. Paragraph (a)(1) of that section prescribes, in part, the grade requirements for avocados shipped within the production area. Minimum grade and size requirements for avocados imported into the United States are currently in effect under § 944.28.
In reviewing the Florida avocado regulations, it was noted that paragraph (a)(1) of § 915.306 of the regulations currently states that avocados must grade at least U.S. No. 2 but also allows for the commingling of different shapes and sizes within the same container. However, the provisions of the U.S. No. 2 grade require that avocados packed in the same container be similar in shape and size.
USDA requested that the Committee review the Florida avocado regulations regulatory language in regards to grade for shipments within the production area. The Committee responded that the language permitting commingling was added to the regulations in 1992 to allow handlers to ship quantities of fruit of different shapes and sizes in the same container to make more fruit available for shipment within the production area. Committee members agreed that handlers no longer use this provision as ample fruit is available to fill the containers with avocados of the same shape and size. Consequently, in a June 12, 2013, meeting, the Committee recommended removing the language permitting commingling to align the regulations with current industry practices and with the United States Standards for Grades of Florida Avocados (7 CFR 51.3050 through 51.3069). This action would remove the language permitting the commingling of avocados with dissimilar characteristics, requiring all avocados shipped within the production area to meet the provisions of a U.S. No. 2 grade, as
This action would also make a technical correction to the grade requirements under the avocado import regulation. Section 8e of the Act provides that when certain domestically produced commodities, including avocados, are regulated under a Federal marketing order, imports of that commodity must meet the same or comparable grade, size, quality, or maturity requirements. As it is the only marketing order covering avocados, import requirements are based on the marketing order for avocados grown in South Florida.
The minimum grade requirement for Florida avocados shipped outside the production area was recently increased by a final rule (78 FR 51041) from a U.S. No. 2 to a U.S. Combination grade. The change in grade applies only to Florida avocados shipped outside the production area. The less restrictive U.S. No. 2 grade would continue to apply to shipments within the production area and to imported avocados. As indicated in the final rule, this action would make a technical correction to the import regulation to clarify that the minimum grade requirement for imported avocados remains unchanged at a U.S. No. 2, which is the same grade requirement for avocados shipped within the production area.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Import regulations issued under the Act are based on those established under Federal marketing orders.
There are approximately 30 handlers of Florida avocados subject to regulation under the order and approximately 300 producers of avocados in the production area. There are approximately 260 importers of avocados. Small agricultural service firms, which include avocado handlers and importers, are defined by the Small Business Administration (SBA) as those whose annual receipts are less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).
According to Committee data and information from the National Agricultural Statistical Service, the average price for Florida avocados during the 2011–12 season was approximately $20.79 per 55-pound bushel container, and total shipments were slightly higher than 1.2 million 55-pound bushels. Using the average price and shipment information provided by the Committee, the majority of avocado handlers could be considered small businesses under SBA's definition. In addition, based on avocado production, producer prices, and the total number of Florida avocado producers, the average annual producer revenue is less than $750,000. Information from the Foreign Agricultural Service, USDA, indicates that the dollar value of imported avocados was around $1.1 billion in 2013. Using these values, most importers would have annual receipts of less than $7,000,000 for avocados. Consequently, the majority of avocado handlers, producers, and importers may be classified as small entities.
Mexico, Chile, Peru, and Dominican Republic are the major production areas exporting avocados to the United States. In 2013, shipments of avocados imported into the United States totaled nearly 572,000 metric tons. Mexico accounted for around 509,700 metric tons, with 23,400 metric tons from Chile, 21,600 metric tons from Peru, and 17,000 metric tons were imported from the Dominican Republic.
This proposed rule would remove language permitting the commingling of avocados with dissimilar characteristics for shipments within the production area. This would require all avocados shipped within the production area to meet the provisions of a U.S. No. 2 grade, as provided in the United States Standards for Grades of Florida Avocados. This proposal would revise the grade requirements currently prescribed for Florida avocados shipped within the production area under § 915.306 of the regulations. This proposed change would align marketing order regulations with current industry practices and with the United States Standards for Grades of Florida Avocados. Authority for this action is provided in §§ 915.51 and 915.52 of the order. This action would also make a technical correction to the avocado import regulation, § 944.28, to clarify that the minimum grade requirement for imported avocados remains unchanged at a U.S. No. 2.
Any costs associated with this change are anticipated to be minimal. Committee members indicated that the industry no longer ships containers of dissimilar fruit within the production area. In addition, the volume of U.S. No. 2 grade Florida avocados shipped during a season is small, representing less than one percent of total annual shipments. Further, any impact from this action would be limited to the volume of fruit shipped within the production area. Therefore, implementation of this proposed rule is not expected to impact the volume of fruit being utilized nor would it impact the total volume of Florida avocados on the market. There is no anticipated impact on import volume, as the proposed change to those requirements is merely a clarification. The effects of this proposed rule are not expected to be disproportionately greater or less for small handlers or growers than for large entities.
The only alternative the Committee considered was leaving the regulations for shipments within the production area unchanged. However, Committee members agreed that this language was outdated as the industry no longer commingles shapes and sizes in production area shipments. Therefore, this alternative was rejected.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581–0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.
Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large Florida avocado handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. However, as previously stated, imported
Further, the Committee's meeting was widely publicized throughout the Florida avocado industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 12, 2013, meeting was a public meeting. All entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
In accordance with section 8e of the Act, the United States Trade Representative has concurred with the issuance of this proposed rule.
A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate as this proposed rule should be in place as soon as possible because handlers begin shipping in mid-May, and the technical correction to the import regulation is to clarify that the grade requirement is unchanged. All written comments timely received will be considered before a final determination is made on this matter.
Avocados, Marketing agreements, Reporting and recordkeeping requirements.
Avocados, Food grades and standards, Grapefruit, Grapes, Imports, Kiwifruit, Limes, Olives, Oranges.
For the reasons set forth in the preamble, 7 CFR parts 915 and 944 are proposed to be amended as follows:
7 U.S.C. 601–674.
(a) * * *
(1) Such avocados grade at least U.S. Combination, except that avocados handled to destinations within the production area grade at least U.S. No. 2.
7 U.S.C. 601–674.
(a) Pursuant to section 8e of the Act and Part 944—Fruits; Import Regulations, the importation into the United States of any avocados is prohibited unless such avocados grade at least U.S. No. 2, as such grade is defined in the United States Standards for Grades of Florida Avocados (7 CFR 51.3050 through 51.3069).
Federal Energy Regulatory Commission, Energy.
Notice of proposed rulemaking; correction.
This document contains corrections to the proposed rule (RM14–11–000) which published in the
Comments are due July 29, 2014.
On May 15, 2014, the Commission issued a Notice of Proposed Rulemaking (NOPR) in the above-captioned proceeding.
In FR Doc. 2014–11946 appearing on page 31061 in the
“A public utility subject to the requirements of this section and 18 CFR parts 37 (Open Access Same-Time Information System) and 358 (Standards of Conduct for Transmission Providers) may file a request for waiver of all or part of such requirements for good cause shown.”
“Any eligible entity that seeks interconnection or transmission services with respect to Interconnection Customer's Interconnection Facilities for which a waiver is in effect pursuant to this paragraph (d)(2) shall follow the procedures in sections 210, 211, and 212 of the Federal Power Act, 18 CFR § 2.20, and 18 CFR part 36.”
“Please reference OMB Control No. 1902–0233, 1902–0132, and the docket number (RM14–11–000) of this proposed rulemaking in your submission.”
Rehabilitation Services Administration, Office of Special Education and Rehabilitative Services, Department of Education (RSA).
Notice of Proposed Rulemaking.
The Secretary proposes to amend the definition of “reservation” under the regulations governing the American Indian Vocational Rehabilitation Services (AIVRS) program in one of two ways.
The first proposed amendment, “Alternative A,” would conform the definition to the Department's current interpretation and practices. In order to be eligible for a grant, a federally or State recognized tribe must be located on a Federal or State reservation. The statutory definition of “reservation” includes Federal or State Indian reservations; public domain Indian allotments; former Indian reservations in Oklahoma; and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act. The Department's “Alternative A” definition would also include as a reservation “defined areas of land recognized by a State or the Federal Government where there is a concentration of tribal members and on which the tribal government is providing structured activities and services.”
The second proposed amendment to the regulatory definition of “reservation,” “Alternative B,” would limit the areas of land the Department considers to be reservations to those that are listed in the statutory definition of “reservation”: Federal or State Indian reservations; public domain Indian allotments; former Indian reservations in Oklahoma; or land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act.
The Secretary seeks comment on both alternatives.
We must receive your comments on or before August 22, 2014.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
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The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
Thomas Finch, U.S. Department of Education, 400 Maryland Avenue SW., Room 5147, Potomac Center Plaza (PCP), Washington, DC 20202–2800. Telephone: (202) 245–7343, or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
We also invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.
During and after the comment period, you may inspect all public comments about these proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in room 5147 Potomac Center Plaza (PCP), Washington, DC 20202–2800, between 8:30 a.m. and 4:00 p.m. Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under
Under section 121(a) of the Rehabilitation Act of 1973, as amended (the Rehabilitation Act) (29 U.S.C. 741(a)), the RSA Commissioner may make grants to the governing bodies of Indian tribes located on Federal and
Section 121(c) of the Rehabilitation Act defines the term “reservation” as: “The term `reservation' includes Indian reservations, public domain Indian allotments, and former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act.” The current regulatory definition of “reservation” under the AIVRS program at 34 CFR 371.4(b) is similar: “
The Department currently interprets the term “includes” in the statutory definition of “reservation” to mean that the list of land areas in the statute is not exhaustive. As a result, the Department considers other land areas that it determines are consistent with both the purpose of the program and the list of land areas provided in the statute to be within the meaning of “reservation.” Thus, the Department's longstanding interpretation of the statute is that tribes that are located on a defined and contiguous (i.e. attached, bordering, adjacent) area of land where there is a concentration of tribal members and on which the tribal government is providing structured activities and services meet the statutory definition of “reservation.”
From FY 2007 through FY 2011, five grantees, serving six tribes, were awarded AIVRS grants using the Department's long-standing interpretation of “reservation.” In FY 2013, these grantees provided services to 559 American Indians with disabilities. The Department has received no complaints about the grantees' eligibility at any time during the life of these grants.
We are proposing Alternative A because the current definition of “reservation” in § 371.4(b) does not clearly reflect our statutory interpretation. The Department seeks comment on the amended definition in Alternative A that would make its current interpretation explicit.
The proposed Alternative B definition of “reservation” arises out of a May 9, 2012, U.S. Government Accountability Office (GAO) report, “Federal Funding for Non-Federally Recognized Tribes,” GAO–12–348 (available at
Specifically, the GAO questioned the Department's view that a State-recognized tribe is eligible for AIVRS program grants when it is not located on a State reservation but on a defined area of land where there is a concentration of tribal members and on which the tribal government is providing structured activities and services—described in the tribal service area outlined in a tribe's grant application. The Department provided comments on the GAO's draft report supporting its current practice. The GAO, in its final report, recommended that the Secretary review the eligibility requirements for AIVRS grants and take appropriate action.
The Department has done so, and here continues to consider how best to interpret the statute in light of the purposes of the program. The Department is therefore also seeking comment on a proposed definition of “reservation” that limits eligibility to tribes located only on those areas of land specifically identified in the statutory definition—Alternative B. This proposed change would align the Department's interpretation of “reservation” in the AIVRS program with that of the GAO.
In considering these alternative definitions of “reservation” in the AIVRS program, we have consulted internally, as well as with officials of other Federal government agencies. In addition, as required by Executive Order 13175, the Department consulted tribal officials, tribal governments, tribal organizations, and affected tribal members regarding this matter. The tribal consultation conducted by the Department is described further in the
Finally, the same definition of “reservation” found in 34 CFR 371.4(b) is included in 34 CFR 369.4(b), the regulations governing special project activities, including the AIVRS program, that provide vocational rehabilitation services. We therefore propose conforming amendments to 34 CFR 369.4.
The proposed regulation in Alternative A would amend § 371.4(b) to reflect the Department's current interpretation and practices. Tribes eligible for AIVRS grants would continue to be those located on land specifically identified in the statute, as well as those located on a defined area of land recognized by a State or the Federal Government where there is a concentration of tribal members and on which the tribal government is providing structured activities and services.
In refining our current interpretation in these proposed regulations, we have removed the requirement that the tribal lands be contiguous and added the requirement that they be recognized by a State or the Federal Government. While in the past, many of the tribal lands of tribes that received grants under our current interpretation have been contiguous, we have determined that requiring the lands to be contiguous is not essential to be considered a “reservation” for the purposes of the AIVRS program. We believe that, in order to have similar characteristics to a reservation, the tribal lands must be located on a defined area of land recognized by a State or the Federal Government where there is a concentration of tribal members and on which the tribal government is providing structured activities and services. We understand that some tribal lands so recognized are not necessarily contiguous.
The proposed regulation in Alternative B would limit eligibility to tribes located only on those areas of land specifically identified in the statutory definition.
Under proposed Alternative B, we would amend current § 371.4 to state that
The statutory definition of “reservation” specifically includes land areas that meet the requirements for a reservation (past or present). Use of the term “includes” in the definition, however, indicates that the list need not be exhaustive. Proposed Alternative A areas of land would be identified by the Federal or State Government as discrete areas of land in which tribes provide governmental services to their members, although they do not share all of the characteristics of the areas of land listed in the statute.
For example, tribal land areas proposed as “reservations” in Alternative A are identified by States (in the case of State-designated tribal statistical areas) or by federally recognized Indian tribes (in the case of tribal designated statistical areas) and are accepted by the U.S. Census Bureau, which recognizes them as compact and contiguous areas of land that contain a concentration of people who identify with the tribe and in which there is structured or organized tribal activity. Other service areas that would be covered by proposed Alternative A are defined by State or Federal statute.
Arguably, including these areas of land in addition to those listed in the statute furthers the purpose of the AIVRS program, which the Department administers with the goal of assisting tribes to provide vocational rehabilitation services in a culturally sensitive manner to as many American Indians with disabilities as possible, resulting in meaningful employment.
In proposed Alternative B, we are considering the interpretation recommended by GAO in its report, that the list of land areas contained in the statutory definition of “reservation” should be exclusive and no other areas of land can be “reservations” under the AIVRS program. There may be some support for such an interpretation in other Federal statutes we have examined that authorize financial assistance to Indian tribes and that have been interpreted to include the tribes whose eligibility is at issue here. These statutes use language defining the eligibility of tribes that is broader than the AIVRS governing statute and that authorizes financial assistance to tribes with or without reservations. These statutes use either the phrase “including but not limited to” or explicitly include the authority to provide assistance, for example, to Indian organizations or public or private nonprofit agencies serving Indians.
The Department acknowledges that the areas of land it currently accepts and proposes to include in Alternative A as “reservations” are not specifically identified in the statute and are distinguishable in two respects. All of the statutorily specified land areas—reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act—are (or were) formally recognized and set aside by the Federal or State government for use by Indians and are (or were) subject to Federal or State supervision.
The additional areas of land proposed in Alternative A are not located on reservations, or on any of the other areas listed in the statute as reservations, and do not share these characteristics: They are not set aside for Indians by the Federal or State government, and neither the Federal nor State governments have oversight over them. One reason for limiting AIVRS eligibility to only those tribes that have reservations or other land areas listed in the statute, is to contain the program to tribes that have a certain relationship with a State or the Federal Government that the traditional reservation status implies.
Because we believe either interpretation is supportable, we propose alternative regulations that would each clarify eligibility for the program but have different consequences for affected tribes. We welcome comment on both.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and therefore subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f)(4) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from our interpretation of statutory requirements and those we have determined are necessary for administering the Department's programs and activities.
The amendment to the regulatory definition of “reservation” proposed in Alternative A would produce no change in costs or benefits as it conforms the definition to the Department's current interpretation and practices. The proposed change to “reservation” in Alternative B would affect five current grantees (six tribes, as one grantee is a consortium of two tribes) that currently receive funding through the AIVRS program and at least 29 other federally or state-recognized tribes that we have identified through census data. These tribes would be significantly affected in that they would not be eligible to apply for grants under the AIVRS program. Also significantly affected would be the American Indians with disabilities (559 in FY 2013) who would have sought VR services through these tribes.
The obvious sources to continue to provide VR services to American Indians with disabilities are the State VR programs. Section 121(b)(3) of the Rehabilitation Act of 1973, as amended, requires States to “provide vocational rehabilitation services under its State plan to American Indians residing on or near a reservation whenever such State includes any such American Indians in its State population under section 110(a)(1).”
Of the six tribes that would be immediately affected by the change in proposed Alternative B, two tribes are in Washington State, three tribes are in Louisiana, and one tribe is in North Carolina. Information obtained from discussions with State VR Directors suggests that the State Division of Rehabilitation Services in Washington would be able to serve consumers currently being served by the two AIVRS grantees in that State, whereas Louisiana and North Carolina indicated that they would not be able to absorb the large number of individuals who would need to be served. In addition, Louisiana is under an order of selection whereby it only serves individuals with the most severe or significant disabilities. Therefore, it is unlikely that the current 121 consumers who do not have the most significant disabilities served by that project would be able to receive VR services under an order of selection.
On the other hand, because new grantees would replace the current grantees and provide VR services to American Indians with disabilities who need them in order to secure or maintain employment, the change would primarily involve a shift of resources among projects. Thus, there may not be a net effect in terms of the purpose of the program, which is to serve and place American Indians with disabilities into competitive employment.
In addition, the pool of eligible applicants for a grant under the AIVRS program includes all federally- and State-recognized tribes that are located on reservations as defined specifically by the statute. This is a large majority of the tribes. Currently, RSA provides funds to 85 tribal VR programs to provide VR services to American Indians with disabilities; consequently, the pool of potential applicants is still quite large, and the Department has information that eligible tribes that have not previously applied for an AIVRS grant are preparing to do so.
Under the capacity-building projects in section 21 of the Rehabilitation Act, the Department awards grants to provide support to traditionally underserved populations by conducting research, training, technical assistance, or a related activity to improve services provided under the Act. The grants included a project that conducted grant-writing workshops for American Indian tribes. The Director of this project indicated that, at a minimum, there are at least 12 eligible tribes that have attended the grant writing workshops that have not previously submitted applications for this program, and the tribes have expressed an intent to apply when the Department holds its next competition.
In summary, proposed Alternative B would have a major effect on a small number of current and future grantees. However, we would expect to fund new grantees at the same level as the current grantees. Therefore, the net effect of this proposed change is likely to be that it will not have a noticeable effect on the number of American Indians with disabilities served and placed in employment by the AIVRS program.
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 350.6.)
• Could the description of the proposed regulations in the
• What else could we do to make the proposed regulations easier to understand?
To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the
The Secretary certifies that these proposed regulations would not have a significant impact on a substantial number of small entities. Applicants to RSA's AIVRS program are the governing bodies of Indian tribes or consortia of such governing bodies located on Federal and State reservations and are not considered small entities under the Regulatory Flexibility Act.
This proposed regulation does not contain any information collection requirements.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
As the first step in soliciting feedback on a possible change in the Department's interpretation of “reservation” under the AIVRS program, and consistent with Executive Order 13175 entitled “Consultation and Coordination With Indian Tribal Governments,” the Department of Education published a Notice of Tribal Consultation and Request for Comments in the
The Department's request seeking input focused on three areas: (1) The potential effect on limiting eligibility for AIVRS grants to those Indian tribes (and consortia of tribes) located only on Federal and State reservations and the other land areas specifically listed in the statutory definition of “reservation”; (2) for tribes that currently provide services under this program and that would not meet the revised interpretation of “reservation,” how the individuals receiving those services would continue to receive vocational rehabilitation services to help them in obtaining employment or returning to work; and (3) how a revised interpretation of “reservation” might affect the pool of potential applicants for the AIVRS program that have not previously applied but may consider applying for an AIVRS grant.
The Department received a total of 72 comments in response to the published notice, three of which did not respond directly to the areas on which the Department focused. The 69 remaining comments supported retaining the Department's current interpretation of “reservation.” With regard to the three specific areas on which the Department sought comment, 58 commenters believed that limiting eligibility to only those Indian tribes on Federal or State reservations as defined specifically in the statute would result in a loss of services or the availability of services to American Indians with disabilities; 25 commenters did not believe that the State VR program is as well prepared as the AIVRS projects to provide VR services, including traditional healing services, in a way that would be culturally sensitive to tribal consumers; and 11 commenters believed that a change to the interpretation of “reservation” would reduce the pool of potential applicants.
As a supplement to the
You may also access documents of the Department published in the
Grant programs—social programs, Reporting and recordkeeping requirements, Vocational rehabilitation.
Grant programs—Indians, Grant programs—social programs Indians, Vocational rehabilitation.
For the reasons discussed in the preamble, the Secretary proposes to amend parts 369 and 371 of title 34 of
29 U.S.C. 7011(c), 732, 750, 777(a)(1), 777b, 777f and 795g, unless otherwise noted.
(b) * * *
(b) * * *
29 U.S.C. 709(c) and 741, unless otherwise noted.
(b) * * *
(b) * * *
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify the flowdown requirements for the DFARS clause entitled “Restriction on Acquisition of Certain Articles Containing Specialty Metals.”
Submit comments identified by DFARS Case 2014–D011, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Amy G. Williams, Defense Acquisition Regulations System, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301–3060. Telephone 571–372–6106.
The clause at DFARS 252.225–7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals, as prescribed at DFARS 225.7003–5(a)(2), implements 10 U.S.C. 2533b. This clause is used in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that exceed the simplified acquisition threshold and require the delivery of the following items, if such items contain specialty metals: Aircraft, missile or space systems, ships, tank or automotive systems, weapon systems, or ammunition, and components thereof. Except as provided in paragraph (c) of the clause, any specialty metals incorporated in items delivered under the contract shall be melted or produced
DoD is proposing to revise paragraph (e) of this clause to clarify the requirement to flow this clause down to subcontracts.
In order to prevent misinterpretation of the current flowdown requirement to insert the “substance of the clause” in subcontracts, the flowdown requirement has been rewritten to specify that the only modifications allowed when flowing down the clause are as follows:
• Exclude and reserve paragraph (d) of the clause.
• Modify paragraph (c)(6) of the clause only as necessary to facilitate management of the allowance for up to 2 percent otherwise noncompliant specialty metal content in the end product, while recognizing that the minimal content exception does not apply to specialty metals contained in high-performance magnets.
• Not further alter the clause, other than to identify the appropriate parties.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The reason for issuance of this proposed rule is to clarify the flowdown requirements for DFARS clause 252.225–7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals.
The objective of the rule is to more fully implement the requirements of 10 U.S.C. 2533b, which restricts the acquisition of specialty metals not melted in the United States, its outlying areas, or a qualifying country, in order to strengthen the United States industrial base.
This rule applies to DoD contractors and subcontractors that are providing aircraft, missile or space systems, ships, tank or automotive items, weapon systems, ammunition, or components thereof that contain specialty metals.
Based on FY 2013 data in the Federal Procurement Data System (FPDS), DoD awarded 1,566 contracts that exceeded the simplified acquisition threshold for aircraft, missile or space systems, ships, tank or automotive items, weapon systems, ammunition, or components thereof. Of those awards, 642 were to 533 unique small business entities. FPDS does not contain data on subcontracts. If we estimate an average of 20 subcontracts per contract for items containing specialty metals, and that 35 percent of those subcontracts are awarded to small businesses, 2 subcontracts per small entity, then this rule may apply to approximately 6,123 small business entities subject to DFARS 52.225–7009.
There are no reporting or recordkeeping requirements associated with this rule. With some exceptions, the rule requires contractors to provide certain end products containing specialty metals melted or produced in the United States, its outlying areas, or a qualifying country. However, end items may contain a minimal amount of otherwise noncompliant specialty metals, if the total weight of such noncompliant metals does not exceed 2 percent of the total of all specialty metals in the end item. Therefore, the contractor has some discretion in flowing down the requirement to subcontractors to the extent necessary to ensure compliance of the end products the contractor will deliver to the Government.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
DoD did not identify any alternatives to this rule that would reduce burdens on small entities and meet the objective of the rule. This rule does not impose any significant new burdens on small entities, because it only clarifies what was intended by the conventional statement to insert “the substance of the clause” in subcontracts for items containing specialty metals.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (DFARS Case 2014–D011), in correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 252 is proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(e)
(1) The Contractor shall exclude and reserve paragraph (d) and this paragraph (e)(1) when flowing down this clause to subcontracts.
(2) The Contractor shall insert paragraphs (a) through (c) and this paragraph (e)(2) of this clause in subcontracts, including subcontracts for commercial items, that are for items containing specialty metals to ensure compliance of the end products that the Contractor will deliver to the Government. When inserting this clause in subcontracts, the Contractor shall—
(i) Modify paragraph (c)(6) of this clause only as necessary to facilitate management of the minimal content
(ii) Not further alter the clause other than to identify the appropriate parties.
Fish and Wildlife Service, Interior.
Notice of initiation of scoping and request for information.
We, the U.S. Fish and Wildlife Service (Service), are gathering information to prepare a 12-month finding under the Endangered Species Act of 1973, as amended (Act), on a petition to list the current classification of Humboldt marten (
We request that we receive information on or before August 7, 2014. Information submitted electronically using the Federal eRulemaking Portal (see
You may submit information by one of the following methods:
(1)
(2)
We request that you send information only by the methods described above. We will post all information we receive on
Bruce Bingham, Field Supervisor, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707–822–7201; or facsimile 707–822–8411. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
In a petition dated September 28, 2010 (Center for Biological Diversity (CBD) and Environmental Protection Information Center (EPIC) 2010), the petitioners requested that we consider for listing the (then-classified) subspecies Humboldt marten (
The American marten (
As noted above, at the time of our 90-day finding (77 FR 1900; January 12, 2012), the Humboldt marten was classified as
Ongoing genetic research indicates uncertainty in the Pacific marten subspecies delineations in California and Oregon. Specifically, the best available data indicate that the
According to section 3(16) of the Act, we may consider for listing any of three categories of vertebrate animals: A species, subspecies, or distinct population segment (DPS; see the Service's 1996 Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act at 61 FR 4722). We refer to each of these categories as a potential “listable entity.” We have been petitioned to list collectively two groups of the Pacific marten (two populations in Oregon and one in California) that are currently recognized as belonging to two separate subspecies (as described above). To ensure we are evaluating the most accurate listable entity based on the best scientific and commercial data currently available (including unpublished genetics information), and to ensure we are being fully responsive to the petition (CBD and EPIC 2010), we consider it reasonable that a coastal distinct population segment (DPS) of the Pacific marten constitute the listable entity for our 12-month status review. As such, we consider this DPS to include the currently recognized
(1) The best available data (e.g., new genetics information, similar habitat usage) suggest that the coastal northern California marten population and the coastal Oregon marten populations may be a single evolutionary entity as opposed to two separate entities.
(2) Existing genetics information suggests that subspecies-level taxonomy of
(3) The DPS policy states that the population segment under consideration must be evaluated for discreteness and significance in relation to the remainder of the taxon to which it belongs. Ordinarily, in the present case we would evaluate the marten populations relative to the subspecies to which they belong, but the populations in question currently represent two separate subspecies and there is uncertainty as to the legitimacy of those subspecies classifications, rendering such an evaluation invalid.
(4) Uncertainty in the subspecies-level taxonomy of Pacific marten logically necessitates that we elevate our evaluation of the DPS relative to the Pacific marten at the full species-level. In other words, we would apply the criteria for evaluating a coastal DPS of the Pacific marten relative to the full species Pacific marten (
(5) The DPS policy states that “In all cases, the organisms in a population are members of a single species or lesser taxon.” Therefore, given (1) through (4) above, we think that an evaluation at the species level is appropriate.
Under the DPS policy, two basic elements are considered in the decision regarding the establishment of a population of a vertebrate species as a possible DPS. The question as to whether a population or group of populations qualifies as a DPS requires a finding that the population is both: (1) Discrete in relation to the remainder of the taxon to which it belongs, and (2) biologically and ecologically significant to the taxon to which it belongs. If the population meets the first two criteria under the DPS policy, we then proceed to the third element in the process, which is to evaluate the population segment's conservation status in relation to the Act's standards for listing as an endangered or threatened species.
Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. As the marten populations in question here do not transcend an international boundary, this criterion does not apply.
If we determine that a vertebrate population segment is discrete under one or more of the conditions described in our DPS policy, then we consider its biological and ecological significance to the larger taxon to which it belongs. Because precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy describes four possible classes of information that provide evidence of a population segment's biological and ecological importance to the taxon to which it belongs. This consideration of the population segment's significance may include, but is not limited to, the following:
(1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;
(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;
(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or
(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these conditions to be considered significant. Furthermore, other information may be used as appropriate to provide evidence for significance.
As indicated above, we anticipate concluding an evaluation of the coastal DPS of Pacific marten and submitting a 12-month finding to the
We will accept written information during this 45-day scoping period on our future 12-month finding evaluation of the putative coastal DPS of Pacific marten. We will consider information from all interested parties. We intend that any final action resulting from our evaluation be as accurate as possible and based on the best available scientific and commercial data.
We are interested in the following information for Pacific martens, specifically Humboldt martens in coastal northern California and coastal Oregon populations of Pacific marten:
(1) Habitat requirements for feeding, breeding, and sheltering.
(2) Genetics and taxonomy, especially:
(a) Information (e.g., morphological, genetic, physiological, ecological, behavioral) supporting or contesting current subspecies taxonomy of
(b) Information supporting or contesting the validity of the historical geographic boundaries of the Pacific marten subspecies,
(3) Information to inform a DPS designation, especially:
(a) Information supporting or contesting the combining of the population of Pacific martens in northwest California with the coastal Oregon populations as a single listable entity under our DPS policy.
(b) Information to inform our evaluation as to whether martens in coastal northern California and coastal Oregon do or do not meet the criteria for discreteness and significance under our DPS policy.
(4) The factors that are the basis for making a listing determination for a species, subspecies, or DPS under section 4(a) of the Act (16 U.S.C. 1531
(a) The present or threatened destruction, modification, or curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued existence.
(5) Exposure to toxicants, including anticoagulant rodenticides, including information related to:
(a) Scope of exposure within coastal northern California and coastal Oregon;
(b) Severity of exposure to individuals; and
(c) Potential impacts of exposure to populations.
(6) Historical and current range of the Pacific marten in coastal northern California and coastal Oregon, including distribution patterns.
(7) Historical and current population levels of the Pacific marten in coastal northern California and coastal Oregon, and current and projected trends.
(8) Past and ongoing conservation measures for the Pacific marten in coastal northern California and coastal Oregon, or its habitat.
(9) Effects of climate change on habitat of the Pacific marten, including changes in fire frequency and intensity.
(10) Whether our suggested approach to evaluating the presently recognized subspecies Humboldt marten (
If you submitted comments or information on the 90-day finding (77 FR 1900) during the initial comment period from January 12, 2012, to March 12, 2013, please do not resubmit them. We will incorporate them into the public record and we will fully consider them in the preparation of our 12-month finding. Our 12-month finding will take into consideration all written comments and any additional information we receive during the previous comment period and this scoping period. If you submit information during this scoping period, please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. You may submit your information by one of the methods listed in
If you submit information via
Information we receive, as well as supporting documentation we use in preparing our 12-month finding, will be available via Docket No. FWS–R8–ES–2014–0023 upon publication of our 12-month finding in the
A complete list of references cited is available on the Internet at
The primary authors of this notice are the staff members of the Pacific Southwest Regional Office and Arcata Fish and Wildlife Field Office.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Research, Education, and Economics, USDA.
Solicitation for membership.
In accordance with the Federal Advisory Committee Act, 5 U.S.C. App., the United States Department of Agriculture announces solicitation for nominations to fill 8 vacancies on the National Agricultural Research, Extension, Education, and Economics Advisory Board.
Deadline for Advisory Board member nominations is July 18, 2014.
The nominee's name, resume, completed Form AD–755, and any letters of support must be submitted via one of the following methods:
(1) Email to
(2) By mail delivery service to Thomas Vilsack, Secretary, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250, Attn: NAREEE Advisory Board, Room 332A, Whitten Building.
Michele Esch, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, 1400 Independence Avenue SW., Room 332A, Whitten Building, Washington, DC 20250–2255, telephone: 202–720–3684; fax: 202–720–6199; email:
The National Agricultural Research, Extension, Education, and Economics Advisory Board was established in 1996 via Section 1408 of the
The 8 slots to be filled are:
Nominations are solicited from organizations, associations, societies, councils, federations, groups, and companies that represent a wide variety of food and agricultural interests throughout the country. Nominations for one individual who fits several of the categories listed above,
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical handicap, marital status, or sexual orientation. To ensure that recommendations of the Advisory Board take into account the needs of the diverse groups served by the USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities. Please note that registered lobbyist and individuals already serving another USDA Federal Advisory Committee, are ineligible for nomination.
Appointments to the National Agricultural Research, Extension, Education, and Economics Advisory Board will be made by the Secretary of Agriculture.
Forest Service, USDA.
Notice of meeting.
The Davy Crockett Resource Advisory Committee (RAC) will meet in Ratcliff, Texas. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343)
The meeting will be held at 6:00 p.m. on July 31, 2014.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Davy Crockett National Forest (NF) Ranger Station, Conference Room, 18551 State Highway 7 East, Kennard, Texas. If you would like to attend via teleconference, please contact the person listed under
Written comments may be submitted as described under
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Forest Service, USDA.
Notice of Proposed Directive; Request for Public Comment.
The U.S. Forest Service (Forest Service or Agency) is proposing to amend its internal directives for ski area concessions by adding two clauses to the Special Uses Handbook, FSH 2709.11, chapter 50, to address water rights necessary for and that primarily support operation of ski areas on National Forest System (NFS) lands. A revised water rights clause for ski area permits is needed because the current water rights clause cannot be implemented as intended in many States and because the current clause does not ensure that sufficient water is available for operation of ski areas on NFS lands. Implementation of a revised water rights clause would ensure that water will be available for ski areas on NFS lands. Additionally, there would be greater consistency and accountability in authorization of water uses and ownership of water rights for ski areas.
Comments must be submitted in writing by August 22, 2014.
Send comments electronically by following the instructions at the Federal eRulemaking portal at
Carolyn Holbrook, Recreation, Heritage, and Volunteer Resources staff, 202–205–1426, or Jean Thomas, Watershed, Fish, Wildlife, Air, and Rare Plants staff, 202–205–1172.
The Forest Service is proposing a revised clause to address water rights utilized in support of ski areas on NFS lands. One of the statutory duties of the Forest Service is to administer National Forest System (NFS) lands to provide outdoor recreation to the American public on a sustainable basis. Water for snowmaking and domestic uses is critical to the continuation of resort-based skiing on NFS lands. Because of this, the Forest Service requires ownership by the United States, either solely or in narrow circumstances jointly with the permit holder, of water rights developed on NFS lands to support operation of ski areas. This policy was adopted due to concern that if water rights used to support ski area operations are severed from a ski area the Forest Service will lose the ability to offer the area to the public for skiing. An example of this is when water rights are sold for other purposes.
It has long been the policy of the Forest Service that permit holders must acquire water rights in the name of the United States for water diverted from and used on NFS lands pursuant to special use authorizations in furtherance of the Agency's congressionally mandated multiple-use objectives through the Multiple-Use Sustained-Yield Act (MUSYA) of 1960, which include range, watershed, timber, fish and wildlife, and outdoor recreation. The reason for this policy is straightforward: Congress has directed the Agency to manage National Forests
To effectuate the policy, the Forest Service Manual (FSM) included directives since 1982 that require the United States to own water rights for water diverted from and used on NFS lands as a condition of issuance of special use authorizations for activities that further MUSYA objectives. For example, a 1982 permit clause for ski areas in the Forest Service's Rocky Mountain Region required that “[a]ll water rights obtained by the permittee for use on the area must be acquired in the name of the United States”; a 1989 ski area permit clause in that Region provided that water rights “shall be acquired in the name of or transferred to the United States”; and a 1997 national clause for recreation uses authorized under term permits required that “all water rights obtained by the holder for use on the area authorized must be acquired in the name of the United States.”
In 2004, after extensive discussion with the National Ski Areas Association (NSAA), the Forest Service adopted a new water rights clause for inclusion in ski area permits. In a significant departure from prior policy, the 2004 clause provided that after June 2004, rights to water diverted from and used on NFS lands inside the permit area would be jointly held by the United States and the permit holder. The 2004 clause did not address ownership of water rights that were acquired before June 2004, water rights for diversions from NFS lands, or private lands outside the permit boundary.
As the Forest Service began utilizing the 2004 clause, it become apparent that it did not operate to effectuate co-ownership of a 100 percent interest in NFS ski area water rights as intended and there were substantial misunderstandings as to its meaning with regard to application of the Forest Service's water rights policy to NFS ski area water rights. Based on these concerns, the Agency decided to revise the 2004 Clause.
On November 8, 2011, the Forest Service issued an interim directive replacing the 2004 Clause with a revised water rights clause (2011 Clause). In contrast to the 2004 Clause, the 2011 Clause addressed the different types of water rights associated with ski areas, the need to ensure that ski area water rights remain available to support the ski area, and the ability of the United States to effectuate the provisions of the clause.
The 2011 Clause identified three categories of water rights associated with ski areas: (1) Water rights for water diverted from and used on NFS lands in the permit area; (2) water rights for water diverted from NFS lands outside the permit area for use on NFS lands inside the permit area; and (3) water rights for water purchased or leased by the holder and water rights for water diverted from non-NFS lands.
Consistent with the 2004 Clause, the 2011 Clause provided that water rights for water diverted from and used on NFS lands in the permit area that were acquired after the effective date of the 2004 Clause must be jointly owned. For clarity, the 2011 Clause included provisions expressly effectuating a joint tenancy with a right of survivorship for jointly held water rights. Water rights in this category that were acquired prior to the effective date of the 2004 Clause were governed by the terms of the permit under which they were acquired. The United States had to exercise its joint ownership of ski area water rights only in support of the authorized ski area. Likewise, the permit holder could not sever its joint ownership from the ski area.
The 2011 Clause provided that water rights for water diverted from NFS lands outside the permit area for use on NFS lands inside the permit area had to be authorized by a separate permit, and addressed ownership of these water rights based on when they were acquired. Water rights in this category that were acquired after the effective date of the 2011 Clause had to be acquired in the name of the United States. Ownership of water rights in this category that were acquired prior to adoption of the 2011 Clause was governed by the permit terms under which the water rights were acquired. Under the 2011 Clause, the holder could not sever these water rights from the ski area.
The 2011 Clause also made clear that water rights purchased or leased by the permit holder could be solely owned by the holder even if they were changed or exchanged to a point of diversion and use on NFS lands in the permit area (changed or exchanged water rights). The 2011 Clause provided that changed or exchanged water rights and water rights for water diverted from non-NFS lands for use on NFS lands in the permit area that were acquired after issuance of the 2011 Clause could not be divided or transferred or severed from the ski area.
The 2011 Clause provided that upon termination or revocation of the permit, the holder had to transfer to any succeeding permit holder its interest in water rights for water diverted from and used on NFS lands within the permit area; water rights for water diverted from non-NFS lands for use on NFS lands in the permit area that were acquired after the effective date of the 2011 Clause; and water rights that were changed or exchanged after the effective date of the 2011 Clause. If the ski area was not reauthorized, the permit holder's interest in jointly held water rights had to be transferred to the United States. For water rights owned solely by the holder, the holder had the option of removing the diversion structures and water use off NFS lands or transferring the water rights to the United States.
The 2011 Clause included a provision granting limited power of attorney to the United States to execute documents on behalf of the holder as necessary to ensure that water rights were acquired and transferred as required by the 2011 Clause. The 2011 Clause also obligated the holder to waive any claims against the United States for compensation in connection with application of the 2011 Clause.
On March 6 2012, the Forest Service issued an interim directive clarifying and modifying the 2011 Clause (2012 Clause). The 2012 Clause modified the 2011 Clause in several respects. First, the Agency clarified that the Forest Service would not take any action with respect to its water rights that would adversely affect the availability of water for operation of the authorized ski area unless necessary to fulfill legal requirements. Second, the Agency clarified that for water rights for water diverted from NFS lands, the ski area could divide or transfer its ownership interest or sever its ownership interest from the ski area with the consent of the Forest Service. Third, the Agency removed any restrictions on the holder's ability to sever water rights for water diverted from non-NFS lands for use on NFS lands in the permit area.
The NSAA filed a lawsuit in the United States District Court for the District of Colorado on March 12, 2012, opposing use of the 2011 and 2012 Clauses. On December 19, 2012, the
Publishing this proposed directive for public comment corrects procedural deficiencies associated with the 2011 and 2012 ski area water rights clauses that were identified by the court and allows those who would be affected by the proposed directive to participate in its development.
The Forest Service reached out to stakeholders by conducting four listening sessions and three open houses in April 2013 to identify interests and views from a diverse group of stakeholders regarding a revised water rights clause for ski areas (78 FR 21343, Apr. 10, 2013). Two listening sessions were held in Washington, DC; one was held in Denver, Colorado; and one was held in the Lake Tahoe area in California. Approximately 21 people attended the listening sessions. Open houses were held in Denver, Colorado; Salt Lake City, Utah; and the Lake Tahoe area in California. To generate discussion, stakeholders were presented with four themes at the meetings: The role of ski areas in ensuring natural resource sustainability, availability of water to support ski are improvements, economic sustainability, and ensuring long-term commitment of water for use at ski areas.
Approximately 40 people attended the open houses. Additionally, participants were invited to submit comments electronically by May 10, 2013. Fourteen comments were received. The input from these listening sessions and open houses (hereinafter “stakeholder recommendations”) was considered in the development of this proposed directive. A summary of the stakeholder recommendations follows.
• Do not issue a ski area water rights clause. The United States should apply for water rights in its own name and participate in State proceedings.
• Follow applicable State water law and pertinent Supreme Court decisions.
• Conduct a negotiated rulemaking to establish a new ski area water rights clause and obtain an outside facilitator.
• All previous ski area water rights clauses must be declared null and void.
• Rescind water rights clauses for other types of special uses.
• Intergovernmental and private contractual agreements regarding water rights are essential in Colorado and are difficult to replicate. It would be difficult for a new permit holder to duplicate the complex water rights agreements that currently support ski areas.
• Assess the sufficiency of water during project analysis, including consideration of current operations.
• Assess impacts of proposals on water quality and downstream water needs.
• Assure that sufficient water is available for both current and future ski area needs to protect business operations and local recreation economies.
• Determinations of water sufficiency and fair market value should be made by a third party with substantial experience in ski area operations and water right appraisals.
• The applicable Forest plan should establish whether winter use is appropriate and how much water is available for winter use. Ski area modifications, additions, or expansions that require water could be limited to the scope of winter use and water for winter use contemplated by the applicable Forest plan.
• Requirements to operate snowmaking and other facilities in accordance with the applicable master development plan may be adequate to ensure sufficient water for ski area operations.
• Do not be short-sighted about the use of resources to benefit for-profit business versus the future of natural resources.
• Require that water rights associated with all water necessary to operate a ski area be committed to that use in perpetuity.
• Do not allow ski areas to own water rights on leased land.
• The water should remain tied to the land.
• Require a deed restriction to ensure that privately owned water rights are not severed from NFS lands.
• Create procedures that safeguard against severance of water rights from ski areas.
• Ski areas should commit to retaining water rights with the land over the term of the permit.
• Add a provision stating that a water rights clause that reduces the availability of water on or to NFS lands may injure resources and therefore is presumed to be contrary to the public interest.
• A concern regarding adequacy of water may arise if a prospective permit holder has not acquired sufficient water rights, and the current permit holder retains or sells water rights that have been historically used at the ski area.
• It may be helpful to require the Agency to make a determination of whether a prospective permit holder has acquired sufficient water rights for future ski area operations.
• The permit needs to describe the ground rules or responsibilities for the ski area when acting as the agent of the Forest Service with respect to water rights.
• Specify how compliance with the water rights clause will be measured.
• Factor the value of water rights into ski area permit fees.
• Forest Service ownership of water rights would create a disincentive for private investment.
• A clause that requires transfer of ownership to the United States or that restricts transfer of ski area water rights would substantially impair the value of ski area investments.
• The Forest Service does not need to assure long-term economic health of the ski industry.
• Ski areas have proven experience with water rights; the Forest Service has uneven knowledge of water rights.
• Water rights are an asset like a ski lift that needs to be managed by the ski area.
• Water rights are private property rights, not publicly owned resources.
• Distinguish between newly acquired water rights and existing water rights.
• Do not require change of ownership of existing, privately owned water rights.
• Do not require transfer of privately owned water rights to the United States without compensation; that would constitute a taking.
• Do not require joint ownership of water rights; that could constitute a taking.
• There are legal differences between ski area water rights located inside and ski area water rights located outside the permitted area.
• Water rights on private and other non-Federal land should not be treated
• Recognize different requirements for water rights and water use in different jurisdictions.
• Do not establish terms that conflict with municipal water rights and associated agreements between suppliers and ski areas.
• Require ski area permit holders to provide written notice in advance of any water right application, including notice of filings to change a point of diversion or beneficial use.
• Provide an initial option to a subsequent ski area owner to purchase the water rights necessary to operate the ski area; provide a second option to local government to purchase those water rights; and provide a third option to the Forest Service to purchase those water rights.
• Condition the quantity rather than the ownership of water rights, for example, require ski areas to maintain a specific quantity of water rights.
These comments are addressed in the section-by-section analysis of the proposed directive to the extent they were utilized in the development of the proposed directive.
Establishing terms that govern water rights associated with a ski area permit is necessary to communicate clear expectations and to achieve consistency in administration of special uses among Forest Service administrative units. Pursuant to the court order in
The Forest Service's authority to manage lands under its jurisdiction derives from the Property Clause of the United States Constitution, which empowers Congress to “make all needful Rules and Regulations respecting the . . . Property belonging to the United States.”
The Forest Service has broad authority to regulate and condition the use and occupancy of NFS lands under the Term Permit Act of 1915 (16 U.S.C. 497), which authorizes the Secretary of Agriculture to permit use and occupancy of National Forest land “upon such terms and conditions as he may deem proper”; the Multiple Use—Sustained Yield Act (MUSYA) (16 U.S.C. 529), which authorizes the Secretary of Agriculture to develop and administer the surface resources of the National Forests; and the Federal Land Policy and Management Act (FLPMA) (43 U.S.C. 1765), which authorizes the Secretary of Agriculture to impose terms and conditions of rights-of-way on Federal land. In 1986, Congress directly addressed the Forest Service's authority to regulate development of ski areas on NFS lands. In the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b), Congress explicitly provided that permits are to be issued “subject to such reasonable terms and conditions as the Secretary deems appropriate” (16 U.S.C. 497(b)(7)).
Consistent with its constitutional and statutory authority, the Forest Service regulates the occupancy and use of NFS lands, including ski area operations, through issuance of special use permits and other authorizations (36 CFR part 251, subpart B). The Forest Service must include in special use authorizations terms and conditions that the Forest Service deems necessary to protect Federal property and economic interests (36 CFR 251.56(a)(ii)(A)); manage efficiently the lands subject to and adjacent to the use (36 CFR 251.56(a)(ii)(B)); protect the interests of individuals living in the general area of the use who rely on resources of the area (36 CFR 251.56(a)(ii)(E)); and otherwise protect the public interest (36 CFR 251.56(a)(ii)(G)).
By regulation, the Forest Service has also established the Directive System, through which the Chief and specified Line Officers can issue directives setting forth the Agency's administrative policy, procedure, and guidance (36 CFR 200.4(b)(1)). The Directive System consists of the Forest Service Manual (FSM) and a series of Forest Service Handbooks (FSHs), which serve as the primary source of administrative direction to Forest Service employees. The Special Uses Handbook, FSH 2709.11, governs special uses, including ski areas on NFS lands.
The proposed water rights clause for prior appropriation States would modify the Forest Service's approach to accomplishing the objective of long-term availability of water to sustain ski area uses. Unlike water rights diverted from and used on NFS lands by holders of other types of special use authorizations, water rights for water diverted from and used on NFS lands for ski area purposes involve long-term capital expenditures. In States like Colorado and New Mexico, holders of ski area permits may have to purchase senior water rights at considerable expense to meet current requirements for snowmaking to maintain viability. Holders of ski area permits need to show the value of these water rights as business assets, particularly during refinancing or sale of a ski area. The value of these water rights is commensurate with the significant investment in privately owned improvements at ski areas. These investments were recognized by Congress in enactment of the National Forest Ski Area Permit Act, which authorizes permit terms of up to 40 years. 16 U.S.C. 497b(b)(1). In addition to these financial issues, the land ownership patterns at ski areas—particularly the larger ones—often involves a mix of NFS and private lands both inside and outside the ski area permit boundary, making it difficult to implement a policy of sole Federal ownership for NFS ski area water rights. Much of the development at ski areas is
Therefore, the Forest Service is proposing to require non-severability, rather than United States ownership, of NFS ski area water rights. In the context of the proposed clause, non-severability means that a privately owned water right could not be sold separately from other ski area assets (e.g., improvements such as lifts and lodges). Non-severability would prevent ski area permit holders from taking any action during the term of the permit that would adversely affect the availability of applicable water rights to support operation of the ski area. By providing for non-severability of NFS ski area water rights, the Agency will be able to ensure continued availability of water to support ski area operations, so that the Agency can fulfill its mandate to provide for recreational use of NFS lands.
The proposed directive would have no effect on water rights clauses in existing ski area permits that predate the 2011 and 2012 clauses. In addition, other aspects of the Forest Service's water rights policy, such as approval of water facilities, would remain the same for ski areas as it is for other types of special uses. Furthermore, the proposed directive would have no effect on the Forest Service's water rights policy for other multiple uses since water rights for those uses would continue to be owned and administered in accordance with applicable directives and permit clauses.
The Forest Service is proposing to add two clauses for ski area water rights to FSH 2709.11, section 52.4: Clause D–30 would be used in States that follow prior appropriation law for managing water rights, and Clause D–31 would be used in States that follow riparian law for managing water rights. Under a prior appropriation system, water rights may be severed from the land in some States. Under a riparian system, water rights are appurtenant to the land. This approach responds to the recommendation that a water rights clause should recognize different requirements for different jurisdictions. The chart below identifies which clause would be used for ski area permits in various states.
The first paragraph of the instructions would provide direction to permit administrators on when to use the prior appropriation clause. The first paragraph would limit clause D–30 to ski areas in prior appropriation States; provide that clause D–30 supersedes existing national and regional ski area water rights clauses in the Directive System in prior appropriation States; and provide for inclusion of the clause when a ski area permit is reissued or modified per 36 CFR 251.61 in a prior appropriation State.
The second paragraph would instruct that before issuing a new or modified permit in a prior appropriation State, Authorized Officers shall: Ensure that the holder is in compliance with all water facility and water use requirements in clause D–30; inventory ski area water rights; classify the ski area's water rights consistent with the tables in clause D–30; and ensure that the water rights inventory in paragraph 8 of clause D–30 is approved in writing by the Regional Forester prior to issuance or amendment of a ski area permit.
The third paragraph would provide for amending the permit to update the water rights inventory, as appropriate.
The fourth paragraph would limit water rights and water developments under a ski area permit to those that are necessary for and that primarily support the operation of the ski area; would provide that all water facilities and water rights that meet these criteria, regardless of whether they are for diversions on NFS lands inside or outside the permit boundary, should be included in the ski area permit; and would define what it means to be necessary for and primarily support the operation of a ski area.
The fifth paragraph would provide instructions for use of an optional provision when restrictions on water withdrawal are required by a regulation or policy, an adjudication, or a settlement agreement or are based on a decision document supported by environmental analysis; provide instructions for use of an additional provision in California, which has a riparian system in addition to a prior appropriation system; and require an analysis of water sufficiency prior to authorizing a permit amendment for a new water development.
The sixth paragraph would provide that prior to authorizing a permit amendment for a new water facility at a ski area, the Authorized Officer shall ensure that sufficient water is available to operate the water facility.
The last paragraph would provide that when bonding is required, direction in FSM 6560 applies and standard forms for bonding should be utilized.
These instructions on when and how to use clause D–30 are being added to FSH 2709.11, sec. 52.4, to provide direction to permit administrators to enhance consistency and accountability in authorization of water uses and ownership of water rights for ski areas. The instructions incorporate several focus group recommendations, including providing a water rights clause for prior appropriation States and a water rights clause for riparian States to recognize differences among jurisdictions; providing for the proposed clause to supersede existing water rights clauses in the Directive System; and requiring that a determination of whether sufficient water is available be made prior to authorizing new water developments.
These requirements for water facilities would be added to clarify the meaning of terms; provide for the imposition of terms and conditions that the Forest Service deems necessary to protect public property, public safety, and natural resources; clarify what may and what may not be authorized by a ski area permit; and expressly require approval of changes to water facilities by the Authorized Officer and documentation of that approval through amendment to the permit.
Paragraphs 1b, d, and f would limit the scope of water facilities that could be authorized under a ski area permit. These requirements are consistent with several focus group recommendations, including recognizing differences between water facilities on and off NFS lands and water facilities inside and outside the permit boundary, requiring advance notice of changes in authorized water facilities, and imposing terms that will protect public resources.
Paragraph 1g would document any water withdrawal restrictions required by a regulation or policy, an adjudication, or a settlement agreement or based on a decision document and is consistent with the recommendation to recognize impacts on other water use or users.
Paragraph 1h, which addresses the dual water systems in California, is consistent with the recommendation to recognize different requirements in different jurisdictions.
Paragraph 3b would provide that NFS ski area water rights shall be acquired in accordance with applicable State law; that the holder shall maintain NFS ski area water rights, including federally owned NFS ski area water rights, for the term of the permit and any subsequent permit; that the holder shall have the responsibility to submit water rights applications and filings that are necessary to protect NFS ski area water rights in accordance with State law; and that the holder shall bear the cost of acquiring, maintaining, and perfecting NFS ski area water rights, including federally owned NFS ski area water rights.
Paragraph 3c would provide that NFS ski area water rights that are jointly or solely owned by the United States shall remain in Federal ownership. Additionally, paragraph 3c would provide that if the holder's ski area permit utilizes NFS ski area water rights acquired in the name of or transferred to the United States or held jointly with the United States, the holder shall have the responsibility to submit any applications or other filings that are necessary to protect those water rights as the agent of the United States in accordance with State law. Furthermore, paragraph 3c would provide that notwithstanding the holder's obligation to maintain federally owned NFS ski area water rights, the United States reserves the right to take any action necessary to maintain and protect those water rights, including submitting any applications or other filings that may be necessary to protect those water rights.
Paragraph 3d would provide that if a water facility corresponding to an NFS ski area water right was or is initiated, developed, certified, permitted, or adjudicated by the holder without a special use authorization, then the water facility is in trespass; that the owner of the NFS ski area water right shall apply for authorization of the water facility; and that if the application is denied, the owner shall promptly remove the water facility and petition in accordance with State law to remove the point of diversion and water use from NFS lands or abandon the NFS ski area water right.
Under paragraph 3, NFS ski area water rights that are not owned by the United States could be owned by the holder, provided that ownership by the holder is consistent with applicable State law as it applies to other parties within the State. In contrast to the 2012 clause, paragraph 3 would not require transfer of water rights to the United States under the terms of prior permits. Paragraph 3 responds to several focus group recommendations regarding transfer of water rights to the United States.
Paragraph 4b would provide that when the holder has an interest in any NFS ski area water rights, or water rights that the holder has purchased or leased from a party other than a prior holder that are changed or exchanged to provide for diversion from sources on NFS lands within the permit boundary for use that primarily supports operation of the ski area authorized by this permit (“changed or exchanged water rights”), the holder shall not take any action during the term of the permit that would adversely affect availability of those water rights to support the operation of the ski area unless approved in writing in advance by the Authorized Officer. Paragraph 4b would commit the holder to utilizing any changed or exchanged water rights and NFS ski area water rights owned by the holder for ski area operations. Paragraph 4b addresses focus group recommendations that water rights needed for ski area operations be committed to that use for the long term. Furthermore, non-severability is necessary to meet the objective of sustained use under MUSYA and is necessary to ensure the long-term viability of ski areas. Without the requisite water rights and associated water facilities, ski areas cannot operate.
The restrictions in paragraph 5 help ensure that water remains available to fulfill the MUSYA purpose of providing the recreational opportunity of skiing to the American public. It is a reasonable exercise of the Agency's power over use and occupancy of NFS lands and of its mandate to provide sustainable recreation opportunities to require that water rights developed on NFS lands for ski area purposes be transferred to subsequent ski area owners through the sale of the ski area. While water rights are granted by the State agencies or courts, the beneficial use and the diversion necessary to their establishment rests on the Forest Service's discretionary decision to grant a ski area permit, and the Agency's discretionary decision to allow use of NFS lands for water facilities. The Agency's authority to deny a special use permit for a ski area or a water facility is sufficiently broad to allow the Agency to condition those authorizations by requiring the holder to sell its water rights to the subsequent holder.
If the ski area is not reauthorized, it is reasonable to require the holder to remove the point of diversion and water use for water rights owned solely by the holder or, if the holder prefers, to relinquish those water rights. The basis of the Agency's authorization of ski area water facilities is facilitation of ski area operations. Once that use ends, there is no basis for leaving the point of diversion and water use on NFS lands: Water facilities cannot be maintained on NFS lands without a special use permit (36 CFR 251.50(a)).
The transfer provisions in paragraph 5 treat privately owned water rights in the same manner as other privately owned assets covered by a ski area permit are treated under existing regulations and ski area permit provisions. Both privately owned water rights and privately owned improvements are tied to the ski area permit when the use is still authorized and must be removed or relinquished when the use is no longer authorized. A ski area permit terminates when the authorized improvements are sold, and the purchaser shall obtain a ski area permit to operate them (36 CFR 251.59). A ski area permit provides that when the use is not reauthorized, the holder shall either remove the privately owned improvements or they become the property of the United States. In addition, requiring transfer of privately owned water rights to the subsequent permit holder responds to a focus group concern regarding adequacy of water rights if a prospective holder has not acquired sufficient water rights and the current holder retains or sells water rights that have been historically used at the ski area.
There were several focus group recommendations to give an initial option to the succeeding permit holder to purchase privately owned water rights, a second option to the local government to purchase these water rights, and a third option to the United States to purchase these water rights. There are several problems with this approach. It would not ensure continuation of the ski area by keeping water rights tied to the authorized use. Rather, this approach would only require the ski area to make an offer to sell, when the desired result is the transfer of water rights needed to operate the ski area. Assuming the initial option is not exercised, there is no guarantee that the local government would ensure that the water rights remain with the land, and if the second option is not exercised, that the Federal Government would have resources to purchase the water rights.
The Forest Service is proposing a new ski area water rights clause for use in States that have a riparian system.
The instructions would provide direction on use of an optional provision when restrictions on water withdrawal are required by the following: A regulation or policy; an adjudication; a settlement agreement; or based on a decision document supported by an environmental analysis.
The instructions would provide for the following: That water facilities that are necessary for and that primarily support the operation of the ski area on NFS land may be included in a ski area permit; all water facilities that meet these criteria, regardless of whether they are for diversions on NFS lands inside or outside the permit boundary, should be included in the ski area permit; define what it means to be necessary for and primarily support the operation of a ski area; and that any other water facilities must be authorized under a separate permit. Additionally, the instructions would provide that before authorizing a permit amendment for a new water facility at a ski area, the Authorized Officer shall assure that sufficient water is available to operate the water facility.
A definition for a performance bond for a ski area permit would be added to FSM 6560.5. A performance bond for a ski area permit would be defined as “a bond to guarantee repair of surface resource disturbance, removal of equipment, removal of any privately owned improvements, and forest restoration.”
This proposed directive would revise national Forest Service policy governing water rights in ski area permits. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The Agency has concluded that this proposed directive falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.
This proposed directive has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on regulatory planning and review. The Office of Management and Budget (OMB) has determined that this proposed directive is significant and therefore subject to OMB review under E.O. 12866. Consequently, as required, a Cost Benefit Analysis was prepared. However, the proposed directive is not economically significant because it would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. Moreover, the proposed directive would not alter the budgetary impact of entitlement, grant, or loan programs or the rights and obligations of beneficiaries of those programs or interfere with an action taken or planned by another agency.
The Agency has considered the proposed directive in light of the Regulatory Flexibility Act (5 U.S.C. 602
The Agency has analyzed the proposed directive in accordance with the principles and criteria contained in E.O. 12630 and determined that the proposed directive would not pose the risk of a taking of private property. The waiver provision is constitutional, because constitutional rights, including those protected by the Fifth Amendment, can be waived. Including requirements regarding non-severability and transfer of water rights in reissued or modified permits, rather than in existing permits, does not effect a taking of private property. While the Forest Service does not believe that this clause
The Agency has reviewed the proposed directive under E.O. 12988 on civil justice reform. If the proposed directive were adopted, (1) all State and local laws and regulations that conflict with the proposed directive or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to the proposed directive; and (3) it would not require administrative proceedings before parties file suit in court challenging its provisions.
The Agency has considered the proposed directive under the requirements of E.O. 13132 on federalism and has concluded that the proposed directive conforms to the federalism principles. The proposed directive would not impose any compliance costs on the States; and have substantial direct effects on the States or the relationship between the Federal Government and the States; or the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no further assessment of federalism implications is necessary at this time.
The proposed directive does not have tribal implications as defined by E.O. 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” and therefore advance consultation with Tribes is not required. Consultation will be concurrent with this
The Agency has reviewed the proposed directive under E.O. 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Agency has determined that the proposed directive does not constitute a significant energy action as defined in the E.O.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538), the Agency has assessed the effects of the proposed directive on State, local, and Tribal governments and the private sector. The proposed directive would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
The bonding requirement in the proposed directive would be implemented using Standard Form 25, Performance Bond, which has been approved by OMB and assigned control number 9000–0045. Use of form SF–25 Performance Bond is new for the Forest Service special uses program. Additionally, the proposed directive involves a revision to the inventory of water rights associated with operation of the ski area by adding separate charts for changed or exchanged water rights (para. d) and water rights for diversions from non-NFS lands for use on NFS lands within the permit boundary (para. e). Furthermore, there is a new requirement to document restrictions on withdrawal and use of water, if applicable. Upon approval of the final rule, the burden associated with this information collection will be incorporated into OMB control number 0596–0082,
The following summarizes the information collection requirement associated with the proposed bonding requirement, the inventory of water rights, and the documentation of restrictions on the withdrawal and use of water:
Comment is invited on (1) whether this collection of information is necessary for the stated purposes and proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden for collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the package submitted to OMB for approval.
The Forest Service organizes its Directive System by alphanumeric codes and subject headings. The intended audience for this direction is Forest Service employees charged with issuing and administering ski area permits. To view the proposed directive, visit the Forest Service's Web site at
Grain Inspection, Packers and Stockyards Administration, USDA.
Notice of advisory committee meeting.
Pursuant to the Federal Advisory Committee Act, this constitutes notice of the upcoming meeting of the Grain Inspection, Packers and Stockyards Administration (GIPSA) Grain Inspection Advisory Committee (Advisory Committee). The Advisory Committee meets annually to advise the GIPSA Administrator on the programs and services that GIPSA delivers under the U.S. Grain Standards Act. Recommendations by the Advisory Committee help GIPSA better meet the needs of its customers who operate in a dynamic and changing marketplace.
July 15, 2014, 8:00 a.m. to 4:30 p.m.; and July 16, 2014, 8:00 a.m. to Noon.
The Advisory Committee meeting will take place at GIPSA's National Grain Center, 10383 N. Ambassador Drive, Kansas City, Missouri 64153.
Requests to orally address the Advisory Committee during the meeting or written comments may be sent to: Administrator, GIPSA, U.S. Department of Agriculture, 1400 Independence Avenue SW., STOP 3601, Washington, DC 20250–3601. Requests and comments may also be faxed to (202) 690–2173.
Terri L. Henry by phone at (202) 205–8281 or by email at
The purpose of the Advisory Committee is to provide advice to the GIPSA Administrator with respect to the implementation of the U.S. Grain Standards Act (7 U.S.C. 71–87k). Information about the Advisory Committee is available on the GIPSA Web site at
The agenda will include an overview of international activities, quality control initiatives, moisture meters, market overview, optical scanning for rice brokens, Field Management Division updates and initiatives, standards and market needs, and inspector performance.
For a copy of the agenda please contact Terri L. Henry by phone at (202) 205–8281 or by email at
Public participation will be limited to written statements unless permission is received from the Committee Chairperson to orally address the Advisory Committee. The meeting will be open to the public.
Persons with disabilities who require alternative means of communication of program information or related accommodations should contact Terri L. Henry at the telephone number listed above.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has determined that revocation of the antidumping (AD) orders on light-walled rectangular pipe and tube (light-walled pipe and tube) from Mexico, Turkey, the People's Republic of China (PRC), and the Republic of Korea (Korea) would likely lead to continuation or recurrence of dumping, and that revocation of the countervailing duty (CVD) order on light-walled pipe and tube from the PRC would likely lead to continuation or recurrence of a countervailable subsidy. The U.S. International Trade Commission (the ITC) has also determined that revocation of these AD and CVD orders would likely lead to a continuation or recurrence of material injury to an industry in the United States. Accordingly, the Department is publishing this notice of the continuation of these AD and CVD orders.
Dena Crossland or Angelica Mendoza, AD/CVD Operations Office VI (AD), or Jennifer Meek or Nancy Decker, AD/CVD Operations Office I (CVD), Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3362 or (202) 482–3019, respectively.
On April 2, 2013, the Department of Commerce (the Department) initiated the first five-year (“sunset”) reviews of the AD orders on light-walled pipe and tube from Mexico, Turkey, the PRC, and Korea
On June 13, 2014, the ITC published its determination, pursuant to sections 751(c)(1) and 752(a) of the Act, that revocation of the
The merchandise subject to the orders is certain welded carbon quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 mm. The term carbon-quality steel includes both carbon steel and
As a result of the determinations by the Department and the ITC that revocation of the
U.S. Customs and Border Protection will continue to collect cash deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of the
These sunset reviews and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) and the International Trade Commission (the ITC) have determined that revocation of the antidumping duty (AD) order on small diameter graphite electrodes from the People's Republic of China (PRC) would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States. Therefore, the Department is publishing a notice of continuation of this AD order.
Michael Romani or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0198 or (202) 482–1690, respectively.
On January 2, 2014, the Department published the initiation of the first sunset review of the AD order on small diameter graphite electrodes from the PRC pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.218(c).
The merchandise covered by the order includes all small diameter graphite electrodes of any length, whether or not finished, of a kind used in furnaces, with a nominal or actual diameter of 400 millimeters (16 inches) or less, and whether or not attached to a graphite pin joining system or any other type of joining system or hardware. The merchandise covered by the order also includes graphite pin joining systems for small diameter graphite electrodes, of any length, whether or not finished, of a kind used in furnaces, and whether or not the graphite pin joining system is attached to, sold with, or sold separately from, the small diameter graphite electrodes. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes are most commonly used in primary melting, ladle metallurgy, and specialty furnace applications in industries including foundries, smelters, and steel refining operations. Small diameter graphite electrodes and graphite pin joining systems for small diameter graphite electrodes that are subject to the order are currently classified under the HTSUS subheadings 8545.11.0010,
As a result of the determinations by the Department and the ITC that revocation of the AD order would likely lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 75l(d)(2) of the Act and 19
This sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Renewable Energy and Energy and Energy Efficiency Advisory Committee: International Trade Administration, U.S. Department of Commerce.
Notice of Reestablishment of the Renewable Energy and Energy Efficiency Advisory Committee and Solicitation of Nominations for Membership.
Pursuant to provisions of the Federal Advisory Committee Act, 5 U.S.C. App., the Department of Commerce announces the reestablishment of the Renewable Energy and Energy Efficiency Advisory Committee (the Committee). The Committee shall advise the Secretary of Commerce regarding the development and administration of programs and policies to expand the competitiveness of U.S. exports of renewable energy and energy efficiency goods and services, in accordance with applicable United States regulations. The Committee's work on energy efficiency will focus on technologies, services, and platforms that provide system-level energy efficiency to electricity generation, transmission, and distribution. These include smart grid technologies and services, as well as equipment and systems that increase the resiliency of power infrastructure. For the purposes of this Committee, covered goods and services will not include vehicles, feedstock for biofuels, or energy efficiency as it relates to consumer goods. Non-fossil fuels that are considered renewable fuels (e.g., liquid biofuels and pellets) are included. This notice also requests nominations for membership.
Nominations for members must be received on or before 4:00 p.m. Eastern Daylight Time (EDT) on August 15, 2014.
(1) Sponsor letter on the company's, trade association's or organization's letterhead containing the name, title, and relevant contact information (including phone, fax, and email address) of the individual requesting consideration;
(2) An affirmative statement that the nominee will be able to meet the expected time commitments of Committee work. Committee work includes (1) attending in-person committee meetings roughly four times per year (lasting one day each), (2) undertaking additional work outside of full committee meetings including subcommittee conference calls or meetings as needed, and (3) frequently drafting, preparing, or commenting on proposed recommendations to be evaluated at Committee meetings;
(3) Short biography of nominee, including credentials;
(4) Brief description of the company, trade association, or organization to be represented and its business activities; company size (number of employees and annual sales); and export markets served;
(5) An affirmative statement that the nominee is not a Federally registered lobbyist, and that the nominee understands that if appointed, he/she will not be allowed to continue to serve as a Committee member if the nominee becomes a Federally registered lobbyist;
(6) An affirmative statement that the nominee meets all Committee eligibility requirements. Please do not send company, trade association, or organization brochures or any other information.
Nominations may be emailed to
Ryan Mulholland, Office of Energy & Environmental Industries, Room 4053, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; phone 202–482–4693; fax 202–482–5665; email
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Receipt of Application for Permit Amendment.
Notice is hereby given that NMFS National Marine Mammal Laboratory, (Responsible Party: Dr. John Bengtson, Director), Seattle, WA, has applied for an amendment to Scientific Research Permit No. 13430–01.
Written, telefaxed, or email comments must be received on or before July 23, 2014.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Tammy Adams or Amy Sloan, (301) 427–8401.
The subject amendment to Permit No. 13430 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 13430, issued on February 17, 2010 (75 FR 8303), authorizes the permit holder to take Pacific harbor seals (
The permit holder requests an amendment to extend the expiration date to January 31, 2020, and modify one protocol. The permit holder proposes to add use of an alternate injectable sedative to reduce stress in harbor seals and California sea lions that may be caused by procedures that have prolonged handling times, such as instrument attachment. The protocols currently include administering valium; the change would be to use midazolam (and its reversal agent, flumazenil) in lieu of valium at the discretion of the attending veterinarian.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
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) Bluefish Advisory Panel (AP) will meet to develop a Fishery Performance Report for the Bluefish fishery in preparation for the Council and the Council's Scientific and Statistical Committee review of specifications that have been set for the 2015 fishing year.
The meeting will be held on Friday, July 11, 2014, from 9 a.m. to 12 noon.
The meeting will be held via webinar with a listening station also available at the Council address below. Webinar link:
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 Advisory Panel will develop a Fishery Performance Report for consideration by the Council and the Council's SSC as they review bluefish management measures established for the 2015 fishing year.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for 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; issuance of permit.
Notice is hereby given that a permit has been issued to the Alaska SeaLife Center (Responsible Party, Tara Reimer, Ph.D.) 301 Railway Avenue, P.O. Box 1329, Seward, AK 99664 to conduct research on captive Steller sea lions (
The permit and related documents are available for review upon written request or by appointment in the following office:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301)713–0376.
Amy Sloan or Jennifer Skidmore, (301) 427–8401.
On March 27, 2014, notice was published in the
Permit No. 18534–00 authorizes the Alaska SeaLife Center to conduct studies on captive Steller sea lions from the Eastern Distinct Population Segment to (1) investigate reproductive physiology and survival, growth, and physiology of captive-bred offspring; and (2) deploy instruments to develop and validate methods for monitoring wild Steller sea lions. Research on up to 18 captive sea lions may include: Anesthesia and sedation; administration of Evan's blue dye and deuterium oxide; biological sampling; dietary supplements; mass and morphometric measurements; ultrasound and radiographs; video and audio recordings; and attachment and proximity to instrumentation. Steller sea lions may be transported to and from approved facilities. The permit authorizes four research-related mortalities over the course of the permit. No research will occur on wild populations. The permit expires May 31, 2019.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service, National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an Incidental Harassment Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Transcontinental Gas Pipe Line Company, LLC (Transco) to take marine mammals, by harassment, incidental to expanding a natural gas pipeline system off the coast of New York.
Effective June 1, 2014, through October 31, 2014.
An electronic copy of the application, authorization, and associated documents may be obtained by visiting the internet at:
Shane Guan, National Marine Fisheries Service, Office of Protected Resources, (301) 427–8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
NMFS shall grant authorization for the incidental taking of small numbers of marine mammals if we find that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat (i.e., mitigation); and requirements pertaining to the monitoring and reporting of such taking. NMFS have defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On March 21, 2013, NMFS received an application from Transco for the taking of marine mammals incidental to the Rockaway delivery lateral project (Project) off the coast of New York over a 1-year period beginning in April 2014. We received a revised application from Transco on May 13, 2013, which reflected updates to the proposed mitigation measures, proposed monitoring measures, and incidental take requests for marine mammals. Further revisions were made to the request in October 2013 due to a change in the project schedule and the application was considered complete and adequate on November 9, 2013. On April 14, Transco amended their take
Transco plans to expand its pipeline system to meet immediate and future demand for natural gas in the New York City market area. This project will provide an additional delivery point to National Grid's (an international electricity and gas company) local distribution companies, giving National Grid the flexibility to redirect supplies during peak demand periods. The in-water portion of the project, which will require pile driving, may result in the incidental taking of seven species of marine mammals by behavioral harassment.
The specific Project activity will be to install a sub-sea natural gas pipeline extending from the existing Lower New York Bay Lateral in the Atlantic Ocean to an onshore delivery point on the Rockaway Peninsula. The work will include the following:
Only the pile driving activities associated with horizontal directional drilling offshore construction are expected to result in the take of marine mammals by Level B harassment. Other aspects of the project are discussed in more detail in Transco's IHA application (
Vibratory hammers are commonly used in steel pile installation and removal when the sediment conditions allow for this method. Transco will likely use the MKT V 52 model of vibratory hammer for the Project. The vibratory hammer is considered a continuous sound source because it continuously drives the pile into the substrate until the desired depth is reached. Transco will use a vibratory hammer to install about 70 piles (5 sets of temporary goal posts and up to 60 temporary fender piles). All piles will be 14- to 16-inch diameter steel pipe piles. Two vibratory hammers will be on site, but only one hammer will be used at a time. Each pile should take about 1 to 2 seconds to install per foot of depth driven, with each pile driven to a depth of about 25 to 30 feet below the seafloor. Therefore, each pile will take up to 60 seconds of continuous pile driving to install. All piles should be installed during a 1-week period, with less than 12 hours of pile driving operation. The goal posts and fenders would remain in the offshore environment for the duration of the horizontal directional drilling portion of construction (3 to 4 months). Extraction of all piles at the end of the construction period should take about as long as installation.
The Project will be located mostly in nearshore waters (within approximately 3 miles of the Atlantic Ocean), southeast of the Rockaway Peninsula in Queens County, New York. A linear segment of underwater land measuring approximately 2.15 miles will be required for offshore pipe lay and trenching activities from the interconnect with Transco's pipeline to the proposed horizontal directional drilling exit point in the nearshore area, seaward of Jacob Riis Park (see Figure 1 of Transco's application). The Project area is located within the greater New York Bight region, with construction occurring within approximately 2.86 miles from the Jacob Riis Park shoreline. Vessels associated with the Project will travel between the pipe yard in Elizabeth, New Jersey, to the offshore construction site. The greater Project area, therefore, is described as the waters between the pipe yard and construction site and the waters offshore of Jacob Riis Park where construction will occur. However, pile driving activities will only take place around the horizontal directional drilling exit point in the nearshore area. All work will occur in water depths between 25 and 50 feet.
Pile driving activities were originally proposed to begin in April 2014 and expected to be complete in August 2014. However, Transco adjusted their construction schedule so that pile installation will begin in June 2014 and pile removal will occur in September 2014. The IHA is valid through October 2014 to allow for construction delays. Total installation time for all piles is expected to total less than 1 day of operation and would occur during a 1-week period. Total operating time for the extraction of all piles at the end of the construction period is expected to take a similar amount of time (1 day total over a 1-week period).
This section was included in the notice of proposed IHA (78 FR 78824, December 27, 2013) as a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this document and that information has not changed.
No source levels were available for 14- to 16-inch diameter steel pipe piles at water depths of approximately 33 feet. The most applicable source levels available are for 12-inch diameter steel
Thirteen marine mammal species under our jurisdiction may occur in the proposed Project area, including four mysticetes (baleen whales), six odontocetes (toothed cetaceans), and three pinnipeds (seals). Three of these species are listed as endangered under the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
However, based on occurrence information, stranding records, and seasonal distribution, it is unlikely that humpback whales, fin whales, minke whales, Atlantic white-sided dolphins, short-finned pilot whales, or long-finned pilot whales will be present in the Project area during the winter in-water construction period. Each of these species is discussed in detail in section 3 of Transco's IHA application (
Table 2 presents information on the abundance, distribution, and conservation status of the marine mammals that may occur in the area from June through September. While harbor porpoise are most likely in the project area during winter months, they are dispersed as far south as New Jersey during the spring and fall. Similarly, short-beaked common dolphins are most likely in the area from January to May, but may still be passing through the area during the summer and fall.
Further information on the biology and local distribution of these species can be found in section 3 of Transco's application (see
This section of the proposed IHA (78 FR 78824, December 27, 2013) included a summary and discussion of the ways that the types of stressors associated with the specified activity (pile driving activities) have been observed to impact marine mammals. That information has not changed and is not repeated here. In summary, the potential effects of sound from the proposed activities may include one or more of the following: Tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and temporary or permanent hearing impairment (Richardson
This section of the proposed IHA (78 FR 78824, December 27, 2013) described the anticipated effects of pile driving activities on marine mammal habitat; that information has not changed and is not repeated here. In summary, because of the short duration of the activity, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-
NMFS published a proposed authorization and request for public comments in the
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, we must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).
To reduce the potential for disturbance from acoustic stimuli associated with the activities, Transco will implement the following mitigation measures for marine mammals:
(1) Vibratory pile driving only;
(2) Pile driving during daylight hours only;
(3) Shutdown procedures;
(4) Soft-start (ramp-up) procedures; and
(5) Discharge control.
Separately, Transco acknowledges the vessel activity and speed restrictions that are already in place along the east coast for the north Atlantic right whale. While the Seasonal Management Area is in effect (November-April), vessel operators will comply with the established regulations. The change in construction schedule (prompted by the seasonal distribution of ESA-listed Atlantic sturgeon) also reduces the overlap of pile driving activities with the North Atlantic right whale season (November-April) and the likelihood of harp seals in the area.
Transco will use a vibratory hammer instead of an impact hammer for all pile driving activities in order to reduce in-water sound levels while installing and removing up to 70 temporary steel pipe piles. The sound source level for the vibratory hammer is less than the source level for an impact hammer, and by avoiding use of an impact hammer Transco removes the potential for Level A harassment of marine mammals.
Pile driving installation and removal will only be conducted when lighting and weather conditions allow the protected species observers to visually monitor the entire Level B harassment area through the use of binoculars or other devices.
Transco will implement soft-start procedures at the beginning of each pile driving session (i.e., at the beginning of each day and after a lapse of activity for at least 30 minutes). Contractors will initiate the vibratory hammer for 15 seconds at 40 to 60 percent reduced energy, followed by a 1-minute waiting period. This procedure will be repeated two additional times before reach full energy.
Protected species observers will monitor the entire Level B harassment area for marine mammals displaying abnormal behavior. Such behavior may include aggressive signals related to noise exposure (e.g., tail/flipper slapping or abrupt directed movement), avoidance of the sound source, or an obvious startle response (e.g., rapid change in swimming speed, erratic surface movements, or sudden diving associated with the onset of a sound source). At NMFS' recommendation, if a protected species observer sees any
All in-water construction activities will comply with federal regulations to control the discharge of operational waste such as bilge and ballast waters, trash and debris, and sanitary and domestic waste that could be generated from all vessels associated with the Project. All Project vessels will also comply with the U.S. Coast Guard requirements for the prevention and control of oil and fuel spills (see Transco's application for more detail).
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of in-water pile driving activities, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of in-water pile driving activities, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of in-water pile driving activity, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the aforementioned mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the MMPA states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that would result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the proposed action area.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of in-water pile driving activity that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
Two NMFS-approved protected species observers will survey the Level B harassment area (~3 miles) for marine mammals 30 minutes before, during, and 30 minutes after all vibratory pile driving activities. The observers will be stationed on a picket boat, located about 1.5 miles from the pile hammer. The picket boat will circle the pile hammer at a 1.5-mile distance so that the entire Level B harassment area could be surveyed. Information recorded during each observation within the Level B harassment area will be used to estimate numbers of animals potentially taken and will include the following:
• Numbers of individuals observed;
• Frequency of observation;
• Location within the Level B harassment area (i.e., distance from the sound source);
• Vibratory pile driving status (i.e., soft-start, active, post pile driving, etc.); and
• Reaction of the animal(s) to pile driving (if any) and observed behavior within the Level B harassment area, including bearing and direction of travel.
If the Level B harassment area is obscured by fog or poor lighting conditions, vibratory pile driving will be delayed until the area is visible. If the Level B harassment area becomes
Transco will provide NMFS with a draft monitoring report within 90 days of the conclusion of monitoring. This report will include the following:
• A summary of the activity and monitoring plan (i.e., dates, times, locations);
• A summary of mitigation implementation;
• Monitoring results and a summary that addresses the goals of the monitoring plan, including the following:
Transco will submit a final report within 30 days after receiving NMFS' comments on the draft report. If NMFS has no comments, the draft report will be considered final.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Transco shall immediately cease the specified activities and immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401 and/or by email to
Transco shall not resume its activities until we are able to review the circumstances of the prohibited take. We will work with Transco to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Transco may not resume their activities until notified by us via letter, email, or telephone.
In the event that Transco discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), Transco shall immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, at 301–427–8401 and/or by email to
In the event that Transco discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Transco would report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, at 301–427–8401 and/or by email to
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
This section of the proposed IHA (78 FR 78824, December 27, 2013) described the methods used to estimate marine mammal density; that information has not changed except for the fact that pile driving activities will no longer take place during spring or winter months. Therefore, the marine mammal densities for the winter and spring seasons are no longer applicable and only summer and fall densities were considered. Transco estimated potential take by multiplying the area of the zone of influence (the Level B harassment area) by the local animal density. This provides an estimate of the number of animals that might occupy the Level B harassment area at any given moment during vibratory pile driving activities. Further information on these calculations and how they were applied to each species is also provided in section 6.3 of Transco's application (
NMFS' current acoustic exposure criteria are provided in Table 2 below. Based on these thresholds, Transco estimated the number of marine mammals that may be exposed to noise that rises to the level of take. Table 3 shows the authorized take for Transco's specified activity, based on the estimated seasonal densities for pile installation and removal and the number of days of activity (up to seven for installation and seven for removal). Table 3 was adjusted from the proposed IHA to account for the new construction schedule and the Marine Mammal Commission's comment.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.
We do not anticipate that any injuries, serious injuries, or mortalities will occur as a result of Transco's Project, and we are not authorizing injury, serious injury, or mortality for this Project. We have determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting pile driving activities off Rockaway Peninsula, from June 2014 through September 2014, may result, at worst, in a modification in behavior and/or low-level physiological effects (Level B harassment) of certain species of marine mammals. There are no known important feeding areas or haul-outs within the project area. While these species may make behavioral modifications, including temporarily vacating the area during the operation of the pile hammer to avoid the resultant acoustic disturbance, the availability of similar habitat surrounding the project area and the short and sporadic duration of the specified activities, have led us to determine that this action will not adversely affect annual rates of recruitment or survival.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from Transco's specified activity will have a negligible impact on the affected marine mammal species or stocks.
The take numbers for each marine mammal species we are authorizing are small (all estimates are less than two percent) relative to the affected stock sizes. Accordingly, NMFS finds that small numbers of marine mammals will be taken.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Transco originally requested, and NMFS proposed, the incidental take of North Atlantic right whale, which is listed as endangered under the Endangered Species Act. Under section 7 of the Act, the Federal Energy Regulatory Commission (FERC; the federal agency responsible for permitting Transco's construction) initiated formal consultation with our Northeast Regional Office on the Project. We (i.e., National Marine Fisheries Service, Office of Protected Resources, Permits and Conservation Division), also initiated formal consultation under section 7 of the Act with the Northeast Regional Office to obtain a Biological Opinion (Opinion) evaluating the effects of issuing an incidental harassment
NMFS participated as a cooperating agency on the FERC's Rockaway Delivery Lateral Project Environmental Impact Statement (EIS), which was published on March 10, 2014 (79 FR 13295) and is available here:
Notice.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. § 3506(c)(2)(A)).
Written comments must be submitted on or before August 22, 2014.
You may submit comments by any of the following methods:
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Requests for additional information should be directed to the attention of Catherine Cain, Attorney Advisor, Office of the Commissioner for Trademarks, United States Patent and Trademark Office, P.O. Box 1451, Alexandria, VA 22313–1451, by telephone at 571–272–8946, or by email to
The United States Patent and Trademark Office (USPTO) administers the Trademark Act, 15 U.S.C. § 1051
Such individuals and businesses may also submit various communications to the USPTO, including providing additional information needed to process a request to delete a particular filing basis from an application or to divide an application identifying multiple goods and/or services into two or more separate applications. Applicants may seek a six-month extension of time to file a statement that the mark is in use in commerce or submit a petition to revive an application that abandoned for failure to submit a timely response to an office action or a timely statement of use or extension request. In some circumstances, an applicant may expressly abandon an application by filing a written request for withdrawal of the application.
The rules implementing the Act are set forth in 37 CFR Part 2. These rules mandate that each register entry include the mark, the goods and/or services in connection with which the mark is used, ownership information, dates of use, and certain other information. The USPTO also provides similar information concerning pending applications. The register and pending application information may be accessed by an individual or by businesses to determine the availability of a mark. By accessing the USPTO's information, parties may reduce the possibility of initiating use of a mark previously adopted by another. The Federal trademark registration process may thereby reduce the number of filings between both litigating parties and the courts.
The forms in this collection are available in electronic format through the Trademark Electronic Application System (TEAS), which may be accessed on the USPTO Web site. TEAS Global Forms are available for the items where a TEAS form with dedicated data fields is not yet available. Applicants may also submit the information in paper form by mail, fax, or hand delivery.
Form Number(s): PTO Forms 1553, 1581, 2194, 2195, 2200, and 2202.
Applicants incur postage costs when submitting information to the USPTO by mail through the United States Postal Service. The USPTO estimates that the majority of the paper forms are submitted to the USPTO via first-class mail at a rate of 49 cents per ounce. Therefore, the USPTO estimates that with 4,091 total paper submissions, the postage costs in this collection will be $2,006.
The filing fees for several items in this collection are charged per class of goods and/or services; therefore, the filing fees will vary for each respondent depending on the number of classes. The total filing fees of $37,705,600 shown here are based on the minimum fee of one class for those items for which a fee is required.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record.
The USPTO is soliciting public comments to: (a) Evaluate 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) 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; (c) Enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by July 23, 2014.
Fred Licari, 571–372–0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
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Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104–164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601–3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 14–16 with attached transmittal, policy justification and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Singapore has requested a possible sale of follow-on support and services for Singapore's Continental United States (CONUS) detachment PEACE CARVIN II (F–16) based at Luke Air Force Base (AFB) for a five-year period. MDE consists of 80 CATM–9M Captive Air Training Missiles. Also included: Jet fuel, containers, publications and technical documentation, tactics manuals and academic instruction, maintenance, clothing and individual equipment, execution and support of CONUS exercise deployments, airlift and aerial refueling, support equipment, spare and repair parts, repair and return, personnel training and training equipment, U.S. Government and contractor technical and logistics support services, and other related elements of logistical and program support. The estimated cost is $251 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a friendly country that has been, and continues to be, an important force for economic progress in Southeast Asia.
Singapore needs this training and equipment to support its F–16 aircraft. The continuation of this training program will enable Singapore to develop mission-ready and experienced F–16 pilots. The well-established pilot proficiency training program at Luke Air Force Base will support professional interaction and enhance operational interoperability with U.S. forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Raytheon Corporation in Tucson, Arizona. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government and contractor representatives to Singapore.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
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1. The CATM–9M Captive Air Training Missile (CATM) is a captive version of the AIM–9M–8/9 Sidewinder used for training purposes only. The CATM does not include the rocket motor or warhead but does include the AIM–9M–8/9 Sidewinder Active Optical Target Detector, Gyro Optics Assembly within the Guidance Control Section, Infrared Countermeasures, and Detection and Rejection Circuitry.
2. The equipment hardware, software, and maintenance are classified Confidential. Pilot training is classified Secret. Manuals and technical documentation are classified Secret. Performance and operating information is classified Secret.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures which might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
4. A determination has been made that the recipient country can provide the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
5. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Singapore.
DoD.
Renewal of Federal Advisory Committee.
The Department of Defense is publishing this notice to announce that it is renewing the charter for the Department of Defense Board of Actuaries (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
This Board's charter is being renewed under the provisions of 10 U.S.C. 183 and the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b) (“the Sunshine Act”), and 41 CFR 102–3.50(a).
The Board is a statutory Federal advisory committee that shall provide the Secretary of Defense and the Deputy Secretary of Defense through, the Under Secretary of Defense for Personnel and Readiness (USD (P&R)), independent advice and recommendations on matters relating to the DoD Military Retirement Fund, the DoD Education Benefits Fund, and other funds as the Secretary of Defense shall specify.
The Board shall report to the Secretary of Defense and the Deputy Secretary of Defense through the USD (P&R). The USD(P&R) may act upon the Board's advice and recommendations.
The DoD, through the Office of the USD(P&R), shall provide support, as deemed necessary, for the Board's performance and functions, and shall ensure compliance with the requirements of the FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended) (“the Sunshine Act”), governing Federal statutes and regulations, and established DoD policies and procedures.
The Board shall be comprised of three members who are appointed by the Secretary or the Deputy Secretary of Defense from among qualified professional actuaries who are members of the Society of Actuaries. Their membership shall be renewed by the
Board members shall serve for a term of 15 years, except that a member of the Board appointed to fill a vacancy occurring before the end of the term for which the predecessor was appointed shall serve only until the end of such term. A member may serve after the end of the member's term until a successor takes office. A member of the Board may be removed by the Secretary of Defense only for misconduct or failure to perform functions vested in the Board.
Board members appointed by the Secretary of Defense or the Deputy Secretary of Defense, who are not full-time or permanent part-time federal employees, shall be appointed as experts and consultants under the authority of 5 U.S.C. 3109 to serve as special government employee (SGE) members, and shall, under the authority of 10 U.S.C. 183(b)(4), serve with compensation, to include travel and per diem for official travel. A member of the Board who is not an employee of the United States is entitled to receive pay at the daily equivalent of the annual rate of basic pay of the highest rate of basic pay then currently being paid under the General Schedule of subchapter III of chapter 53 of title 5, United State Code, for each day the member is engaged in the performance of the duties of the Board. Board members appointed by the Secretary of Defense or Deputy Secretary of Defense, who are full-time or permanent part-time Federal employees, shall be appointed pursuant to 41 CFR 102–3.130(a) to serve as regular government employee (RGE) members.
The DoD shall provide non-voting technical advisors to assist the Board in execution of its duties. The following individuals shall designate one DoD employee from each fund under the Board's purview (the DoD Military Retirement Fund, the DoD Education Benefits Fund, and other funds specified by the Secretary of Defense for purposes of 10 U.S.C. 183) to serve as a non-voting advisor to assist the Board.
a. the Under Secretary of Defense (Comptroller)/Chief Financial Officer;
b. the Assistant Secretary of Defense for Readiness and Force Management, through the Deputy Assistant Secretary of Defense for Military Personnel Policy;
c. the Assistant Secretary of Defense for Reserve Affairs; and
d. the Department of Defense General Counsel.
Each Board member is appointed to provide advice to the government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
DoD, when necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board.
Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the USD (P&R), as the DoD Sponsor.
Such subcommittees shall not work independently of the Board and shall report all of their recommendations and advice solely to the Board for full and open deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. Subcommittees and their members cannot update or report, verbally or in writing, on behalf of the Board, directly to the DoD or any Federal officer or employee.
The Secretary of Defense or the Deputy Secretary of Defense will appoint subcommittee members to a term of service of one-to-four years, with annual renewals, even if the member in question is already a member of the Board. Subcommittee members shall not serve more than two consecutive terms of service unless authorized by the Secretary of Defense or the Deputy Secretary of Defense.
Subcommittee members, if not full-time or permanent part-time Federal employees, will be appointed as experts or consultants, under the authority of 5 U.S.C. 3109 to serve as SGE members. Subcommittee members appointed by the Secretary of Defense, who are full-time or permanent part-time Federal employees, shall be appointed pursuant to 41 CFR 102–3.130(a) to serve as RGE members. Under the authority of 10 U.S.C. 183(b)(4), these special government employee members shall serve with compensation, to include travel and per diem for official travel.
All subcommittees operate under the provisions of FACA, the Sunshine Act, governing Federal statutes and regulations, and established DoD policies and procedures.
The Board's DFO shall be a full-time or permanent part-time DoD employee and shall be appointed in accordance with established DoD policies and procedures.
The Board's DFO is required to be in attendance at all meetings of the Board and its subcommittees for the entire duration of each and every meeting. However, in the absence of the Board's DFO, a properly approved Alternate DFO, duly appointed to the Board according to established DoD policies and procedures, shall attend the entire duration of all meetings of the Board and its subcommittees.
The DFO, or the Alternate DFO, shall call all of the Board and its subcommittees; prepare and approve all meeting agendas; and adjourn any meeting, when the DFO, or the Alternate DFO, determines adjournment to be in the public interest or required by governing regulations or DoD policies and procedures; and chair meetings when directed to do so by the USD (P&R).
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to Department of Defense Board of Actuaries membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Department of Defense Board of Actuaries. All written statements shall be submitted to the DFO for the Department of Defense Board of Actuaries, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Department of Defense Board of Actuaries DFO can be obtained from the GSA's FACA Database—
The DFO, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Department of Defense Board of Actuaries. The DFO, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Office of Science, Department of Energy.
Notice of partially-closed meeting.
This notice sets forth the schedule and summary agenda for a partially closed meeting of the President's Council of Advisors on Science and Technology (PCAST), and describes the functions of the Council.
July 11, 2014, 9:00 a.m. to 12:00 p.m.
National Academy of Sciences (Lecture Room), 2101 Constitution Avenue NW., Washington, DC.
Information regarding the meeting agenda, time, location, and how to register for the meeting is available on the PCAST Web site at:
The President's Council of Advisors on Science and Technology (PCAST) is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from inside the White House, cabinet departments, and other Federal agencies. See the Executive Order at
The public comment period for this meeting will take place on July 11, 2014 at a time specified in the meeting agenda posted on the PCAST Web site at
Please note that because PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST Web site.
Environmental Protection Agency (EPA).
Notice; request for comments and opportunity for public hearing.
On May 19, 2014, the Environmental Protection Agency (EPA) determined that the Bois Forte Band of Chippewa (Bois Forte) had submitted a complete application under section 404 of the Toxic Substances Control Act (TSCA) requesting authorization to administer and enforce the requirements for TSCA sections 402(a), 402(c), and 406(b) in accordance with the provisions of TSCA for trust lands located within the exterior boundaries of the reservation. These programs ensure that: Individuals engaged in certain work that may disturb lead-based paint, including but not limited to abatement and renovation, are properly trained; that training programs are accredited; that contractors engaged in such activities are certified; that owners and occupants of target housing and/or child-occupied facilities are provided information concerning potential hazards of lead-based paint exposure before certain renovations are begun; and that the required work is performed in accordance with work practice standards. This notice announces receipt of the Bois Forte Band of Chippewa's application and request for authorization to administer the program in lieu of the federal program. EPA has determined that the Bois Forte application is complete, and is now
Comments, identified by docket identification (ID) number EPA–R05–OPPT–2014–0360, must be received on or before August 7, 2014. In addition, a public hearing request must be submitted on or before July 8, 2014.
Comments and requests for a public hearing may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
Emma Avant, Land and Chemicals Division (LCD), Toxics Section, U.S. Environmental Protection Agency, 77 W. Jackson Boulevard, Chicago, IL 60604; telephone number: (312) 886–7899; email address:
This action is directed to the public in general. This action may, however, be specifically of interest to firms and individuals engaged in lead-based paint activities and/or renovation and remodeling activities involving pre-1978 housing on the Bois Forte Reservation. 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. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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All documents in the official record are listed in the docket index available at
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You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA–R05–OPPT–2014–0360 in the subject line on the first page of your response.
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You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
You may find the following suggestions helpful for preparing your comments.
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice or collection activity.
7. Make sure to submit your comments by the deadline in this notice.
8. To ensure proper receipt by EPA, identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
On July 14, 2010, the Bois Forte Band of Chippewa (Bois Forte or the Tribe), located in St. Louis and Koochiching Counties in Northern Minnesota, submitted an application under section 404 of TSCA requesting authorization to administer and enforce requirements for: Lead-based paint activities (such as abatement) in accordance with section 402(a) of TSCA; renovation, repair and painting (referred to as “RRP”), in accordance with section 402(c) of TSCA; and pre-renovation education in accordance with section 406(b) of TSCA. These programs contain procedures and requirements for the accreditation of lead-based paint activities and RRP training programs, procedures and requirements for the certification of individuals and firms
The Tribe's application requests authorization to administer and enforce these requirements on lands held in trust for the Tribe within the reservation boundaries. The Tribe has not, at this time, requested authorization to administer and enforce these programs on non-member owned fee lands within the reservation boundaries. If EPA authorizes the Tribal program, EPA will continue to administer and enforce the requirements on non-member owned fee lands within the reservation boundaries. The Tribe may, however, apply to administer and enforce these requirements for all lands located within the exterior boundaries of the reservation at some future time, but must meet all statutory and regulatory requirements under section 404(b) of TSCA, 15 U.S.C. 2684(b) and 40 CFR part 745 subpart Q.
The Bois Forte Reservation includes five land areas, four of which currently include lands held in trust for the Tribe. The Lake Vermillion land area, approximately 2803 acres located near the town of Tower, Minnesota, and the Sugar Bush and Indian Point land areas, approximately 83 acres and 60 acres, respectively, both located near the town of Orr, Minnesota, consist entirely of trust land for which the Tribe will administer and enforce the program. The Nett Lake land area, comprising of 103,000 acres surrounding Nett Lake, and the vast majority of the Bois Forte Reservation land and members, includes both trust land, where the Tribe will administer and enforce the program, and non-member owned fee land, where the Tribe will not. The Deer Creek land area, approximately 23,000 acres currently includes no trust lands; at this time the Tribe will not administer the program on the Deer Creek land area. There are a total of approximately 100 pre-1978 housing properties on trust lands where the Tribe will administer and enforce the program. Because the program addresses lead-based paint found in housing constructed prior to 1978, the only scenarios under which additional housing will come into the universe of regulated properties are: (1) Pre-1978 housing is moved onto trust land, and (2) new lands are placed into trust upon which pre-1978 housing exists.
The Tribe's proposed program includes one provision for which the Tribal program is more stringent than the federal program. The Tribe's definition of “target housing” includes all buildings on Tribal trust lands. The federal program only applies to “target housing,” as defined by section 401(17) of TSCA, 15 U.S.C. 2681, which includes housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any zero-bedroom dwelling. As noted below in Section IV of this notice, if approved, EPA may exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of the Bois Forte Lead Program that is consistent with federal program requirements. Therefore, if approved, EPA will not enforce the Bois Forte Lead Program for violations arising at buildings not included in the federal definition of “target housing.”
In order for EPA to authorize the Bois Forte program, it must determine that the application includes information sufficient for EPA to find Bois Forte eligible for treatment in the same manner as a state (TAS). For the TSCA lead program, TAS requirements are found in 40 CFR 745.324(b)(4), and include, among other things, that the tribe is recognized by the Secretary of the Interior; has an existing government exercising substantial governmental duties and powers; has adequate civil regulatory jurisdiction over the subject matter and entities regulated; and is reasonably expected to be capable of administering the federal program for which it is seeking authorization. In determining that the Tribe's application is complete, EPA believes that the Tribe has demonstrated that it can meet each of these requirements for TAS under this program.
Pursuant to section 404(b) of TSCA, 15 U.S.C. 2684(b) and 40 CFR part 745, subpart Q, EPA provides notice and an opportunity for a public hearing on a state or tribal program application before approving the program. Therefore, by this notice EPA is soliciting public comment on whether the Bois Forte application meets the requirements for EPA approval. This notice also provides an opportunity to request a public hearing on the application. If a hearing is requested, EPA will issue a
On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102–550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601
The following is the Tribe's proposed TSCA Lead-Based Paint program summary, which the Bois Forte Tribe prepared as a required part of its application:
The Bois Forte has adopted by Resolution # 6–2011, the ordinance entitled
The ordinance is designed to be at least as protective as the federal law and provide for adequate enforcement of all provisions through a schedule of flexible remedies. This is accomplished through a combination of Tribe-specific requirements (training accreditation) that are identical to the federal regulations and through incorporation by reference of other required federal elements (certification of individuals, pre-renovation notification activities, renovation, and definitions of lead-based paint hazards). Also incorporated by reference are the federal definitions with the notable expansion of the definition of target housing to include all reservation buildings.
The ordinance contains enforcement and compliance requirements consisting of a schedule of flexible remedies and an appeals process.
The Bois Forte Reservation Lead Program request for federal delegation of authority is a natural application of tribal sovereign power over environmental regulatory activities on the Tribe's lands for the health, welfare, and safety of community members.
Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved state or tribal program. Therefore, if EPA approves the Bois Forte Lead Program application, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of the Bois Forte Lead Program to the extent that such requirement is consistent with federal law.
Environmental Protection, Hazardous Substances, Lead, Renovation Notification, Reporting and Recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice of final agency action.
This notice announces that the Environmental Protection Agency (EPA) Region 9 issued a final permit decision for a Clean Air Act Prevention of Significant Deterioration (PSD) permit to Sierra Pacific Industries for the Sierra Pacific Industries-Anderson Division (SPI-Anderson) facility.
EPA Region 9 issued a final PSD permit decision for the SPI-Anderson facility April 25, 2014. The PSD permit is effective on June 6, 2014. Pursuant to section 307(b)(1) of the Clean Air Act, 42 U.S.C. 7607(b)(1), judicial review of this final permit decision, to the extent it is available, may be sought by filing a petition for review in the United States Court of Appeals for the Ninth Circuit within 60 days of June 23, 2014.
Documents relevant to the above-referenced permit are available for public inspection during normal business hours at the following address: U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105–3901. To arrange for viewing of these documents, call Shaheerah Kelly at (415) 947–4156.
Shaheerah Kelly, Permits Office (Air-3), U.S. Environmental Protection Agency, Region 9, (415) 947–4156,
Following these events, we revised the PSD permit by including GHG emission limits and related requirements, as requested by SPI. Following the U.S. Court of Appeals for the District of Columbia vacatur of EPA's deferral of biogenic carbon dioxide emissions from PSD requirements,
On April 25, 2014, we issued the final PSD permit, our responses to public comments, and other key documents relevant to the final PSD permit in accordance with 40 CFR 52.21 and 40 CFR part 124. In our correspondence and notifications regarding the final PSD permit, we stated that the final permit decision will become effective 30 days after the service of notice of the decision unless our decision is appealed to the EAB pursuant to 40 CFR 124.19. Three petitions were submitted to the EAB. On June 5, 2014, the EAB dismissed these petitions for review of the final PSD permit decision for lack of jurisdiction.
EPA Region 9 has completed the remand proceedings in response to the EAB's Order, pursuant to 40 CFR 124.19(l)(2), and is issuing the final permit decision granting PSD Permit No. SAC 12–01 to SPI for the SPI-Anderson facility. All conditions of the PSD permit issued on April 25, 2014 are final and effective on June 6, 2014.
Environmental Protection Agency (EPA).
Notice; extension of the request for scientific views.
The Environmental Protection Agency (EPA) is extending the comment period for the draft updated national recommended water quality criteria for the protection of human health announced in a previous notice entitled “Updated National Recommended Water Quality Criteria for the Protection of Human Health.” In response to stakeholder requests, the EPA is extending the period of time in which the Agency will accept scientific views for an additional 30 days.
Scientific views must be received on or before August 13, 2014. The comment period was originally scheduled to end on July 14, 2014.
Submit your comments, identified by Docket ID No. EPA–HQ–OW–2014–0135, by one of the following methods:
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Heidi Bethel at U.S. EPA, Office of Water, Health and Ecological Criteria Division (Mail Code 4304T), 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone: (202) 566–2054; or email:
On May 13, 2014, the EPA announced the availability of draft updated national recommended water quality criteria for the protection of human health in a previous notice entitled “Updated National Recommended Water Quality Criteria for the Protection of Human Health” in the
The original comment deadline was July 14, 2014. This action extends the comment period for 30 days. Written scientific views must now be received by August 13, 2014.
Federal Election Commission.
Thursday, June 26, 2014 AT 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor).
This Meeting Will Be Open to the Public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shelley E. Garr, Acting Secretary and Clerk, at (202) 694–1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 18, 2014.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166–2034:
1.
This notice corrects a notice (FR Doc. 2014–14219) published on pages 34754 and 34755 of the issue for Wednesday, June 18, 2014.
Under the Federal Reserve Bank of Minneapolis heading, the entry for Minnwest Corporation, Minnetonka, Minnesota, is revised to read as follows:
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291.
1.
Comments on this application must be received by July 3, 2014.
Government Accountability Office (GAO).
Notice of appointments.
The Balanced Budget Act of 1997 established the Medicare Payment Advisory Commission (MedPAC) and gave the Comptroller General responsibility for appointing its members. This notice announces the appointment of three new members and the reappointment of two existing members.
Appointments are effective May 1, 2014.
MedPAC: 601 New Jersey Avenue NW., Suite 9000, Washington, DC 20001.
To fill this year's vacancies I am announcing the following:
Newly appointed members are Kathy Buto, MPA; Francis “Jay” Crosson, MD, Group Vice President, American Medical Association in Chicago, Illinois; and Warner Thomas, MBA, President and CEO of the Ochsner Health System in New Orleans, Louisiana. Their terms will expire in April 2017.
The reappointed members, whose terms will also expire in April 2017, are Willis D. Gradison, Jr., MBA, formerly a
In addition, Commissioner Jon B. Christianson, Ph.D., Professor in the Division of Health Policy and Management at the School of Public Health at the University of Minnesota in Minneapolis has been designated as Vice Chair of the Commission. [42 U.S.C. 1395b–6.]
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that the Respondent engaged in research misconduct by falsifying assay data that were submitted in reports to NIH. Specifically, ORI found that Respondent knowingly falsified data for cytoprotection assays with antiviral compounds and provided the false data for inclusion in reports submitted to NIH for contracts N01–AI–30047 and N01–AI–70042 and grant U54 HG005034. Respondent transferred raw data from 8X12 SoftmaxPro matrix files into spreadsheets and then falsified the numbers for cell control, virus control, drug cytotoxicity, drug only, and/or cells+ virus+ drug wells to make 206 assays appear to have been successfully performed when they were not.
Ms. Cokonis has voluntarily agreed for a period of three (3) years, beginning on May 29, 2014:
(1) To exclude herself from any contracting or subcontracting with any agency of the United States Government and from eligibility or involvement in nonprocurement programs of the United States Government referred to as “covered transactions” pursuant to HHS' Implementation (2 CFR part 376
(2) To exclude herself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant.
Acting Director, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453–8800.
This gives notice under the Federal Advisory Committee Act (Pub. L. 92–463) of October 6, 1972, that the Advisory Committee on Breast Cancer in Young Women, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS), has been renewed for a 2-year period through June 17, 2016.
For information, contact Temeika L. Fairley, Ph.D., Designated Federal Officer, Advisory Committee on Breast Cancer in Young Women, HHS, CDC, 4770 Buford Highway NE., Mailstop K52, Atlanta, Georgia 30341, telephone 770/488–4518, fax 770/488–4760.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announce the following meeting for the aforementioned committee:
9:00 a.m.–5:00 p.m., July 17, 2014
9:00 a.m.–12:00 p.m., July 18, 2014
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
1. Increase knowledge about human trafficking among health care providers;
2. Build the capacity of health care providers to deliver culturally appropriate and trauma-informed care to victims of human trafficking;
3. Increase the identification of victims of human trafficking; and
4. Increase services to survivors of human trafficking.
The evaluation is an impact evaluation, measuring immediate outcomes, e.g., from pre-intervention to post-intervention, as well as intermediate outcomes at a 3 month post intervention.
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
The goal of HPOG-Impact is to evaluate the effectiveness of approaches used by 20 of the HPOG grantees to provide TANF recipients and other low-income individuals with opportunities for education, training and advancement within the health care field. HPOG-Impact also is intended to evaluate variation in participant impact that may be attributable to different HPOG program components and models. The impact study design is a classic experiment in which eligible applicants will be randomly assigned to a treatment group that is offered participation in HPOG and a control group that is not permitted to enroll in HPOG. In a subset of sites, eligible applicants will be randomized into two treatment arms (a basic and an enhanced version of the intervention) and a control group.
The goal of HPOG–NIE is to describe and assess the implementation, systems change, and outcomes and other important information about the operations of the 27 HPOG grantees
HPOG-Impact and HPOG–NIE are two projects within the broader portfolio of research that OPRE is utilizing to assess the success of the career pathways programs and models. This strategy includes a multi-pronged research and evaluation approach for the HPOG program to better understand and assess the activities conducted and their results as well as the Innovative Strategies for Improving Self-Sufficiency (ISIS) project. In order to maximize learning across the portfolio, survey development for the HPOG and ISIS baseline and follow up surveys is being coordinated, and the majority of the data elements collected in these surveys are similar.
Three data collection efforts related to HPOG research were approved by OMB, including approval of a Performance Reporting System (PRS) (approved September 2011), for collection of additional baseline data for the HPOG-Impact study (approved October 2012), and for collection of data for the National Implementation Evaluation (approved August 2013). Additionally, two data collection efforts for ISIS were approved (November 2011 and August 2013), and a new request is being submitted at the same time as this request (under OMB #0970–0397).
This
Data collection activities to submit in a future information collection request include: A third follow-up survey for HPOG-Impact study participants approximately 60 months after study enrollment.
Previously approved collection activities under 0970–0394 will continue this new request, including additional data collection using the following previously approved instruments: The Performance Reporting System (PRS); the HPOG-Impact 15-month follow-up survey of treatment and control group members; and the HPOG–NIE 15-month Participant Follow-Up survey.
Estimated Annual Response Burden Hours: 6190.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
ISIS is one project within the broader portfolio of research that OPRE is utilizing to assess the success of the career pathways programs and models. In addition to ISIS, this strategy includes a multi-pronged research and evaluation approach for the Health Profession Opportunity Grants (HPOG) Program to better understand and assess the activities conducted and their results. In order to maximize learning across this portfolio, survey development for the HPOG and ISIS baseline and follow up surveys is being coordinated, and the majority of the data elements collected in these surveys are similar.
Two data collection efforts have been approved for ISIS, including one for baseline data collection (approved November 2011), a second for data collection activities to document program implementation, data collection activities for an initial follow-up survey of participants to be administered approximately 15 months after random assignment, and data collection through in-depth interviews for a small sample of study participants (approved August 2013). Additionally, three related data collection efforts for HPOG research were approved by OMB under OMB #0970–0394. These include approval of a Performance Reporting System (PRS) (approved September 2011), for collection of additional baseline data for the HPOG-Impact study (approved October 2012), and for collection of data for the National Implementation Evaluation (approved August 2013). Additionally, a new request is being submitted at the same time as this request.
This
Data collection activities to submit in a future information collection request include a third follow-up survey for ISIS study participants approximately 60 months after study enrollment.
Previously approved collection activities under 0970–0397 will continue under this new request, including additional data collection using the following previously approved instruments: The Basic Information Form; the Self-Administered Questionnaire; 15-Month Follow-Up Survey; 15-Month Follow-Up Survey Tracking Letters; Study Participant In-depth Interview Guide; and Study Participant Check-in Call the estimated number of study participants for the 15-Month Survey and in-depth interviews is reduced from the previous OMB submission. Total sample size targets were reduced at a number of ISIS program sites to reflect actual study enrollment experiences. The number of in-depth interviews projected was also reduced to incorporate experiences to date recruiting participants.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of an Emergency Use Authorization (EUA) (the Authorization) for an in vitro diagnostic device for detection of the novel influenza A (H7N9) virus (detected in China in 2013). FDA is issuing this Authorization under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as requested by Arbor Vita Corporation. The Authorization contains, among other things, conditions on the emergency use of the authorized in vitro diagnostic device. The Authorization follows the April 19, 2013, determination by the Secretary of Health and Human Services (HHS) that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of U.S. citizens living abroad and that involves the novel influenza A (H7N9) virus. On the basis of such determination, the Secretary of HHS also declared on April 19, 2013, that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection of the novel influenza A (H7N9) virus subject to the terms of any authorization issued under the FD&C Act. The Authorization, which includes an explanation of the reasons for issuance, is reprinted in this document.
The Authorization is effective as of April 25, 2014.
Submit written requests for single copies of the EUA to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorization may be sent. See the
Luciana Borio, Assistant Commissioner for Counterterrorism Policy, Office of Counterterrorism and Emerging Threats, and Acting Deputy Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4340, Silver Spring, MD 20993–0002, 301–796–8510 (this is not a toll free number).
Section 564 of the FD&C Act (21 U.S.C. 360bbb–3) as amended by the Project BioShield Act of 2004 (Pub. L. 108–276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113–5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. With this EUA authority, FDA can help assure that medical countermeasures may be used in emergencies to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by biological, chemical, nuclear, or radiological agents when there are no adequate, approved, and available alternatives.
Section 564(b)(1) of the FD&C Act provides that, before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of the following grounds: (1) A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents; (2) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces of attack with a biological, chemical, radiological, or nuclear agent or agents; (3) a determination by the Secretary of HHS that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents;
Once the Secretary of HHS has declared that circumstances exist justifying an authorization under section 564 of the FD&C Act, FDA may authorize the emergency use of a drug, device, or biological product if the Agency concludes that the statutory criteria are satisfied. Under section 564(h)(1) of the FD&C Act, FDA is required to publish in the
No other criteria for issuance have been prescribed by regulation under section 564(c)(4) of the FD&C Act. Because the statute is self-executing, regulations or guidance are not required for FDA to implement the EUA authority.
On April 19, 2013, under section 564(b)(1)(C) of the FD&C Act, the Secretary of HHS determined that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of U.S. citizens living abroad and that involves the novel influenza A (H7N9) virus. Also on April 19, 2013, under section 564(b)(1) of the FD&C Act, and on the basis of such determination, the Secretary of HHS declared that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection of the novel influenza A (H7N9) virus, subject to the terms of any authorization issued under section 564 of the FD&C Act. The Secretary of HHS also specified that this declaration is a declaration of an emergency with respect to in vitro diagnostics as defined under the Public Readiness and Emergency Preparedness (PREP) Act Declaration for Pandemic Influenza Diagnostics, Personal Respiratory Protection Devices, and Respiratory Support Devices signed by then Secretary Michael Leavitt on December 17, 2008 (73 FR 78362, December 22, 2008). Notice of the determination and the declaration of the Secretary were published in the
An electronic version of this document and the full text of the Authorization are available on the Internet at
Having concluded that the criteria for issuance of the Authorization under section 564(c) of the FD&C Act are met, FDA has authorized the emergency use of an in vitro diagnostic device for detection of the novel influenza A (H7N9) virus (detected in China in 2013) subject to the terms of the Authorization. The Authorization in its entirety (not including the authorized versions of the fact sheets and other written materials) follows and provides an explanation of the reasons for its issuance, as required by section 564(h)(1) of the FD&C Act.
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.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 USC, as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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
Notice is hereby given of a change in the meeting of the Center for Scientific Review Special Emphasis Panel; July 15, 2014, 10:00 a.m. to July 15, 2014, 5:00 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 which was published in the
The meeting will start at 9:00 a.m. and end at 5:00 p.m. The meeting date and location remain the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to Public Law 92–463, notice is hereby given that the Substance Abuse and Mental Health Services Administration's (SAMHSA) Center for Substance Abuse Treatment (CSAT) National Advisory Council will meet June 25, 2014, 2:00–3:30 p.m. in a closed teleconference meeting.
Public Notice was published in the
A summary of the meeting and a roster of Council members may be obtained as soon as possible after the meeting, by accessing the SAMHSA Committee Web site at
Telephone: (240) 276–1692,
Fax: (240) 276–1690,
Email:
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the review and funding cycle.
Coast Guard, Department of Homeland Security.
Request for applications.
The Coast Guard seeks applications for membership on the Commercial Fishing Safety Advisory Committee. The Commercial Fishing Safety Advisory Committee provides advice and makes recommendations to the Coast Guard and the Department of Homeland Security on various matters relating to the safe operation of commercial fishing industry vessels.
Applicants must submit a cover letter and resume in time to reach the Designated Federal Officer on or before July 25, 2014.
Applicants should submit a cover letter and resume via one of the following methods:
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Mr. Jack Kemerer, Alternate Designated Federal Officer, telephone 202–372–1249, fax 202–372–8377, or email
The Commercial Fishing Safety Advisory Committee is a federal advisory committee authorized under Title 46, United States Code, section 4508, as amended by section 604 of the Coast Guard Authorization Act of 2010, (Pub. L. 111–281) and chartered under the
The Commercial Fishing Safety Advisory Committee meets at least once a year. It may also meet for other extraordinary purposes. Its subcommittees or working groups may communicate throughout the year to prepare for meetings or develop proposals for the committee as a whole to address specific tasks.
The Commercial Fishing Safety Advisory Committee shall consist of 18 members with particular expertise, knowledge, and experience regarding the commercial fishing industry as follows:
(a) Ten (10) members who shall represent the commercial fishing industry and who—(1) reflect a regional and representational balance; and (2) have experience in the operation of vessels to which Chapter 45 of Title 46, United States Code applies, or as crew
(b) Three (03) members who shall represent the general public, including, whenever possible—(1) An independent expert or consultant in maritime safety; (2) a marine surveyor who provides services to vessels to which Chapter 45 of Title 46, United States Code applies; and (3) a person familiar with issues affecting fishing communities and families of fishermen; and
(c) One member each of whom shall represent—(1) Naval architects and marine engineers; (2) manufacturers of equipment for vessels to which Chapter 45 of Title 46, United States Code applies; (3) education or training professionals related to fishing vessel, fish processing vessel, or fish tender vessel safety or personnel qualifications; (4) underwriters that insure vessels to which Chapter 45 of Title 46, United States Code applies; and (5) owners of vessels to which Chapter 45 of title 46, United States Code applies.
The Coast Guard will consider applications for seven (07) positions that expire or become vacant in October 2014 in the following categories:
(a) Commercial Fishing Industry representatives (
(b) General Public, a marine surveyor who provides services to commercial fishing vessels (
(c) A representative of manufacturers of equipment for commercial fishing vessels (
(d) A representative of owners of commercial fishing vessels (
Each member serves for a term of three years. An individual may be appointed to a term as a member more than once. All members serve at their own expense and receive no salary from the Federal Government, although travel reimbursement and per diem may be provided for called meetings.
Registered lobbyists are not eligible to serve on Federal Advisory Committees. Registered lobbyists are lobbyists required to comply with provisions contained in the
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are selected as a non-representative member from the general public, you will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18, United States Code. As a candidate for appointment as a Special Government Employee, applicants are required to complete a Confidential Financial Disclosure Report (Office of Government Ethics Form 450). The Department of Homeland Security may not release the reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the
If you are interested in applying to become a member of the Committee, send your application materials to Mr. Jack Kemerer, Commercial Fishing Safety Advisory Committee Alternate Designated Federal Officer, via one of the transmittal methods provided above by the deadline in the
To visit our online docket, go to
Office of the Secretary, Interior.
Notice.
Under the Federal Advisory Committee Act (FACA), following consultation with the General Services Administration, the Secretary of the Interior has renewed the Sport Fishing and Boating Partnership Council (Council) charter for 2 years.
The charter will be filed with the Senate and House of Representatives and the Library of Congress on July 8, 2014.
Brian Bohnsack, Council Coordinator, U.S. Fish and Wildlife Service, (703) 358–2435,
The Council will conduct its operations in accordance with the provisions of the FACA. It will report to the Secretary of the Interior (Secretary), through the Director of the U.S. Fish and Wildlife Service. The Council will function solely as an advisory body. The Council's duties will consist of, but are not limited to:
a. Providing advice that will assist the Secretary in compliance with the Fish and Wildlife Act of 1956.
b. Fulfilling responsibilities established by Executive Order 12962:
(1) Monitoring specific Federal activities affecting aquatic systems and the recreational fisheries they support.
(2) Reviewing and evaluating the relation of Federal policies and activities to the status and conditions of recreational fishery resources.
c. Recommending policies or programs to increase public awareness and support for the Sport Fish Restoration and Boating Trust Fund.
d. Recommending policies or programs that foster conservation and ethics in recreational fishing and boating.
e. Recommending policies or programs to stimulate angler and boater participation in the conservation and restoration of aquatic resources through outreach and education.
f. Advising how the Secretary can foster communication and coordination among government, industry, anglers, boaters, and the public.
The Council will consist of no more than 18 members and up to 16 alternates appointed by the Secretary for 2-year terms. The Director of the U.S. Fish and Wildlife Service and the President of the Association of Fish and Wildlife Agencies (AFWA) are ex officio members. Appointees will be selected from among, but not limited to, the following national interest groups:
a. State fish and wildlife resource management agencies (two members—
b. Saltwater and freshwater recreational fishing organizations,
c. Recreational boating organizations,
d. Recreational fishing and boating industries,
e. Recreational fishery resources conservation organizations,
f. Tribal resource management organizations,
g. Aquatic resource outreach and education organizations, and
h. The tourism industry.
Members will be senior-level representatives of recreational fishing, boating, and aquatic resources conservation organizations, and must have the ability to represent their designated constituencies.
The Council will function solely as an advisory body and in compliance with provisions of the FACA (5 U.S.C. Appendix). This notice is published in accordance with section 9(a)(2) of the FACA. The Certification of Renewal is published below.
Fish and Wildlife Service, Interior.
Notice of intent; notice of public scoping meetings; request for comments.
We, the U.S. Fish and Wildlife Service (Service, us, or we), announce five public scoping meetings to inform our decision to prepare either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA) of 1969, as amended, in conjunction with an evaluation of our eagle management objectives. The decision to initially prepare an EA or EIS will be, in part, contingent on the complexity of issues identified during, and following, the scoping phase of the NEPA process. The scoping meetings will provide an opportunity for input from other agencies, Tribes, nongovernmental organizations, and the public on the scope of the NEPA analysis, the pertinent issues we should address, and alternatives we should analyze.
To ensure consideration of written comments, they must be submitted on or before September 22, 2014. See
See
Please note in your submission that your comments are in regard to Eagle Management and Permitting. We request that you send comments by only one of the methods described above. We will post all information received on
Eliza Savage, at 703–358–2329 (telephone), or
We will hold informal public informational sessions and present currently identified issues at the following dates and times:
The Bald and Golden Eagle Protection Act (16 U.S.C. 668–668d) (Eagle Act) prohibits take of bald eagles and golden eagles except pursuant to Federal regulations. The Eagle Act regulations at title 50, part 22 of the Code of Federal Regulations (CFR), define the “take” of an eagle to include the following broad range of actions: “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb” (§ 22.3). The Eagle Act allows the Secretary of the Interior to authorize certain otherwise prohibited activities through regulations. The Secretary is authorized to prescribe regulations permitting the “taking, possession, and transportation of [bald eagles or golden eagles] . . . for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes, or . . . for the protection of wildlife or of agricultural or other interests in any particular locality,” provided such permits are “compatible with the preservation of the bald eagle or the golden eagle” (16 U.S.C. 668a).
On September 11, 2009, we published a final rule that established two new permit regulations under the Eagle Act (50 FR 46836). One permit authorizes take (removal, relocation, or destruction) of eagle nests (50 CFR 22.27). The other permit type authorizes nonpurposeful take of eagles (50 CFR 22.26). The nonpurposeful eagle take regulations provide for permits to take bald eagles and golden eagles where the taking is associated with, but not the purpose of, an activity. The regulations provide for standard permits, which authorize individual instances of take that cannot practicably be avoided, and
“Programmatic take” of eagles is defined at 50 CFR 22.3 as “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.” Take that does not reoccur, or that is caused solely by indirect effects, such as short-term construction, does not require a programmatic permit. For additional explanation of programmatic take and programmatic permits, see 74 FR 46841–46843.
We can issue programmatic permits for disturbance as well as take resulting in mortalities, based on implementation of “advanced conservation practices” developed in coordination with the Service. “Advanced conservation practices” are defined at 50 CFR 22.3 as “scientifically supportable measures that are approved by the Service and represent the best available techniques to reduce eagle disturbance and ongoing mortalities to a level where remaining take is unavoidable.” Most take authorized under § 22.26 to this point has been in the form of disturbance; however, permits may authorize lethal take that is incidental to an otherwise lawful activity, such as mortalities caused by collisions with rotating wind turbines.
The Eagle Act requires the Service to determine that any take of eagles it authorizes is compatible with the preservation of bald eagles or golden eagles. In the preamble to the final regulations for eagle nonpurposeful take permits, and in the Final Environmental Assessment of the regulations, we defined that standard to mean “consistent with the goal of stable or increasing breeding populations” (74 FR 46838).
On April 13, 2012, the Service initiated two additional rulemakings: (1) A proposed rule (“Duration Rule”) to extend the maximum permit tenure for programmatic eagle nonpurposeful take permit regulations from 5 to 30 years (77 FR 22267), and (2) an Advance Notice of Proposed Rulemaking (ANPR) soliciting input on all aspects of those eagle nonpurposeful take regulations (77 FR 22278). The ANPR highlighted three issues on which the Service particularly hoped the public would comment: Eagle population management objectives, compensatory mitigation, and programmatic permit issuance criteria.
The Duration Rule was finalized on December 9, 2013 (78 FR 73704). Under the revised regulations, the maximum term for programmatic permits was extended from 5 to 30 years. This change is intended to facilitate the responsible development of projects that will be in operation for many decades and bring them into compliance with statutory mandates protecting eagles. The longer term permits will incorporate conditions that provide for adaptive management. Permits issued for periods longer than 5 years are available only to applicants who commit to implementing adaptive management measures if monitoring shows the measures are needed and likely to be effective. The required adaptive management measures will be negotiated with the permittee at the outset and specified in the terms and conditions of the permit.
At no more than 5-year intervals from the date a permit is issued, permittees must compile a report documenting any fatalities and other pertinent information for the project and submit the report to the Service. The Service will evaluate each permit to reassess fatality rates, effectiveness of measures to reduce take, the appropriate level of compensatory mitigation, and eagle population status. Depending on the findings of the review, permittees may be required to undertake additional conservation measures consistent with the permit. The Service will make mortality information from both the annual and the 5-year compilation report available to the public.
The language of the Bald and Golden Eagle Protection Act provides flexibility with regard to defining management objectives for bald and golden eagles. The management objective directs strategic management and monitoring actions and, ultimately, determines what level of permitted eagle removal can be allowed.
We are considering modifying current management objectives for eagles, which were established with the 2009 eagle permit regulations and Final Environmental Assessment of our regulatory permitting system under the Eagle Act. Different management objectives could be set for bald and golden eagles. At least four elements may be considered when establishing a management objective: (1) The population objective and relevant timeframe for it to be met; (2) eagle management units (EMUs), or the geographic scale over which permitted take is regulated to meet the population objective; (3) whether we also set an upper limit on take at a finer scale than the EMU to avoid creating population sinks in local breeding populations; and (4) our level of risk tolerance. The level of risk tolerance means how much risk the agency is willing to take when information is uncertain in carrying out management actions (e.g., setting levels of authorized take). For example, when information is less certain, a more conservative approach may be adopted to avoid unintended outcomes. Alternatively, to provide for more flexibility in permitting, the Service could adopt a more risk-tolerant approach.
The current management objective, also referred to as the “Eagle Act preservation standard,” is to manage populations consistent with the goal of maintaining stable or increasing breeding populations over 100 years, which is at least five eagle generations. The scale the Service uses to evaluate eagle populations is referred to as eagle management units. EMUs for the golden eagle were set at the Bird Conservation Region (BCR) level because the only range-wide estimates available for the golden eagles are BCR-scale population estimates. To establish management populations for bald eagles, we used natal populations (eagles within the natal dispersal range of each other) in our evaluation in order to look at distribution across the landscape. (Natal dispersal refers to the movement between hatching location and first breeding or potential breeding location.) Because the populations delineated by this approach roughly correspond to the Service's Regional organizational structure, we have been managing bald eagles based on populations within the eight Service Regions, with some shared populations. Estimates of bald and golden eagle population size in each EMU were calculated, and EMU-specific estimates of demographic rates were used in models to determine rates of authorized take that are compatible with maintaining stable breeding populations.
Under the current management approach, permitted take of bald eagles is capped at 5 percent estimated annual productivity for bald eagles. Because the Service lacked data to show that golden eagle populations could sustain any additional unmitigated mortality at that time, we set take thresholds for that species at zero for all regional populations. This means that any new authorized “take” of golden eagles must be at least equally offset by
The Service also developed and applies guidance on upper limits of take at more local scales to manage cumulative impacts to local populations. Under the guidance, the Service must assess take rates both for individual projects and for the cumulative effects of other human-caused take eagles, at the scale of the local‐area eagle population. The local-area population is the population of eagles within the natal dispersal distance. The Service considers this distance to represent the geographic area that would provide recruits to replenish a local population if permitted take caused a decline in the breeding population of eagles around a permitted project. The Service identified take rates of between 1 and 5 percent of the total estimated local‐area eagle population as significant, with 5 percent being at the upper end of what might be appropriate under the Eagle Act preservation standard, whether offset by compensatory mitigation or not.
The Service is considering a range of possible alternatives to the current management objective. At one end of the spectrum, we could adopt a qualitative objective such as “to not meaningfully impair the bald or golden eagle's continued existence.” Alternatively, we could update the current management objective by incorporating newer, improved information on eagle movements, population size, and natal dispersal distances to revise the EMUs; set explicit numerical population objectives in each EMU; and refine the area we consider the local scale. We could also adopt an explicit level of risk tolerance relative to how much take to allow based on uncertainty in the population size estimates.
The scoping process announced today in this notice will inform our eagle management program and our decision to prepare either an EA or an Environmental Impact Statement (EIS). Service staff who have been implementing the 2009 eagle permit regulations have identified a number of priority issues for evaluation during this scoping process, including the following: Eagle population management objectives; programmatic permit conditions; compensatory mitigation; evaluation of the individual and cumulative effects of low-risk (or low-effect) permits; and criteria for nest removal permits. For more information about these topics visit
The NEPA analysis will evaluate the environmental effects of a range of alternatives for eagle management. We also intend the NEPA analysis to:
• Evaluate up-to-date information about the status of bald and golden eagle populations;
• Enable the Service to recalculate regional take thresholds for both species (if population management will continue to incorporate regional take thresholds);
• Analyze the effects of issuing permits to take golden eagles and bold eagles throughout the U.S.;
• Further analyze the effects of longer term nonpurposeful take permits; and
• Rigorously evaluate the effects of low-risk (low-effect) projects to allow for more efficient permitting at the individual project level.
The purpose of the public scoping process with regard to NEPA is to determine relevant issues that could influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EA or EIS and related compliance efforts. Factors currently being considered for analysis in the EA or EIS include, but are not limited to:
1. The direct, indirect, and cumulative effects that implementation of any reasonable alternative could have on bald and golden eagles, migratory birds, other wildlife species, and their habitats;
2. Direct, indirect, and cumulative effects of projects that are likely to take a minimal number of eagles and as such can be classified as “low-risk” or “low effect” and for which permitting at the individual project level could be expedited;
3. Effects to cultural resources;
4. Potentially significant impacts on biological resources, land use, air quality, water quality, water resources, economics, and other environmental/historical resources;
5. Strategies for avoiding, minimizing, and mitigating the impacts to eagles, migratory birds, wildlife, and other resources listed above;
6. Climate change effects; and
7. Any other environmental issues that should be considered with regard to potential alternatives for eagle management.
The final range of reasonable alternatives and mitigation to be analyzed in the draft EA or EIS will be determined in part by the comments received during the scoping process. The public will also have a chance to review and comment on the draft EA or EIS when it is available (a notice of availability will be published in the
We are requesting information from other interested government agencies, Native American Tribes, the scientific community, industry, nongovernmental organizations, and other interested parties.
You may submit your comments and materials by one of the methods described above under
Written comments we receive become part of the public record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that the entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
The authorities for this action are the Bald and Golden Eagle Protection Act (16 U.S.C. 668–668d) and the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Bureau of Indian Affairs, Interior.
Notice of meeting.
The Bureau of Indian Education (BIE) is announcing that the Advisory Board for Exceptional Children (Advisory Board) will hold its next meeting in Albuquerque, New Mexico. The purpose of the meeting is to meet the mandates of the Individuals with Disabilities Education Act of 2004 (IDEA) for Indian children with disabilities.
The Advisory Board will meet on Thursday, July 17, 2014, from 8:30 a.m. to 4:00 p.m. and Friday, July 18, 2014, from 8:30 a.m. to 4:00 p.m. Mountain Time. Orientation for new members will be held Wednesday, July 16, 2014, from 8:30 a.m. to 4:00 p.m. Mountain Time.
The meeting will be held at the Manual Lujan, Jr. Building, 1011 Indian School Rd. NW., Rooms 231–232, Albuquerque, NM 87104.
Sue Bement, Designated Federal Officer, Bureau of Indian Education, Albuquerque Service Center, Division of Performance and Accountability (DPA), 1011 Indian School Road NW., Suite 332, Albuquerque, NM 87104; telephone number (505) 563–5274 or email
In accordance with the Federal Advisory Committee Act, the BIE is announcing that the Advisory Board will hold its next meeting in Albuquerque, NM. The Advisory Board was established under the Individuals with Disabilities Education Act of 2004 (20 U.S.C. 1400
The following items will be on the agenda:
* During the July 18, 2014 meeting, time has been set aside for public comment via conference call from 1:30–2:00 p.m. Mountain Time. The call-in information is: Conference Number 1–888–417–0376, Passcode 1509140.
National Park Service, Interior.
Notice of Availability.
The National Park Service announces the availability of the Record of Decision for the Remote Vaccination Program to Reduce the Prevalence of Brucellosis in Yellowstone Bison, Environmental Impact Statement, Yellowstone National Park, Wyoming. On March 3, 2014, the Regional Director, Intermountain Region approved the Record of Decision for the Environmental Impact Statement (EIS). As soon as practicable, the National Park Service will begin to implement the Preferred Alternative contained in the Final EIS issued on January 24, 2014.
The Record of Decision will be available for public inspection online at
Jennifer Carpenter or Rick Wallen, P.O. Box 168, Yellowstone National Park, WY 82190, telephone (307) 344–2203, or by email at
The National Park Service (NPS) considered three alternatives in the Final EIS: Alternative A—No Action; Alternative B—Remote Delivery Vaccination for Young Bison Only; and Alternative C—Remote Delivery Vaccination for Young Bison and Adult Females. The NPS has identified Alternative A—No Action, as the Preferred Alternative in the Final EIS and as the Selected Action in the Record of Decision based on substantial uncertainties associated with vaccine efficacy, delivery, duration of the vaccine-induced protective immune response, diagnostics, bison behavior and evaluation of public comments. Consistent with the 2000 Interagency Bison Management Plan (IBMP), under the Selected Action the NPS will continue hand-syringe vaccination of bison at capture facilities near the park boundary and conduct monitoring and research on the relationship between vaccine-induced immune responses and protection from clinical disease (e.g., abortions). Also, selective culling of potentially infectious bison based on age and diagnostic test results may be continued at capture facilities to reduce the number of abortions that maintain the disease. The NPS will continue the adaptive management program, as described in the 2000 Record of Decision for the IBMP and subsequent adaptive management adjustments, to learn more about the disease brucellosis and answer uncertainties, as well as to develop or improve suppression techniques that could be used to facilitate effective outcomes, minimize adverse impacts, and lower operational costs of efforts to reduce brucellosis prevalence in the future.
As part of the Selected Action, the NPS will also continue to work with other federal and state agencies, American Indian tribes, academic institutions, non-governmental organizations, and other interested
United States International Trade Commission.
Denial of a request to institute a section 751(b) review concerning the Commission's affirmative determination in investigation No. 731–TA–1092 (Final),
The Commission hereby gives notice that it has declined to institute an investigation pursuant to section 751(b) of the Tariff Act of 1930 (19 U.S.C. 1675(b)) (the Act) to review the Commission's affirmative determination in investigation No. 731–TA–1092 (Final) because it is already conducting a full five-year review of the same order.
Douglas Corkran (202–205–3057), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter 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 (
On May 22, 2006, the Department of Commerce (Commerce) determined that imports of diamond sawblades and parts thereof from China and Korea were being sold in the United States at less than fair value within the meaning of section 731 of the Act (19 U.S.C. 1673) (71 FR 29303 and 71 FR 29310, respectively). The Commission initially determined that a U.S. industry was not materially injured or threatened with material injury by reason of imports of diamond sawblades and parts thereof from China and Korea (71 FR 39128, July 11, 2006).
Following an appeal of the negative determinations and on remand from the U.S. Court of International Trade (CIT), the Commission determined that a U.S. industry was threatened with material injury by reason of subject imports of diamond sawblades and parts thereof from China and Korea. On January 13, 2009, the CIT affirmed the Commission's affirmative determinations on remand.
On February 10, 2009, Commerce published notice of the CIT's decision and suspended liquidation for entries of the subject merchandise after the effective date of the notice until the end of all appellate proceedings (74 FR 6570). On November 4, 2009, Commerce published orders that antidumping duties be imposed on imports of diamond sawblades and parts thereof from China and Korea, effective January 23, 2009 (74 FR 57145).
Following affirmance of the CIT's judgment by the U.S. Court of Appeals for the Federal Circuit and upon conclusion of all appellate proceedings in the action, the Commission published notice of its final determinations in the antidumping investigations of diamond sawblades and parts thereof from China and Korea (75 FR 68618, November 8, 2010). Commerce revoked the order on diamonds sawblades from Korea effective as of October 24, 2011 (76 FR 66892, Oct. 28, 2011).
On July 11, 2013, the Commission received a request to review its affirmative determination in investigation No. 731–TA–1092 (Final) pursuant to section 751(b) of the Act (19 U.S.C. 1675(b)). The request, filed by Husqvarna Construction Products North America, Inc. (Husqvarna) of Olathe, Kansas, argued that there were several changes since the issuance of the Commission's remand determination. Specifically, Husqvarna noted Commerce's revocation of the antidumping duty order on imports of diamond sawblades and parts thereof from Korea; additional Commerce determinations with respect to Chinese exporter Advanced Technology & Materials Co., Ltd.; the acquisition of certain petitioners by non-U.S. producers of diamond sawblades, as well as changes in those petitioners' patterns of sourcing diamond sawblades; an alleged reduction in the overlap of competition between subject imports from China and the domestic like product as a result of the preceding changes; and opposition to the continuation of the order on diamond sawblades and parts thereof from China by a “significant part of U.S. production.”
On August 9, 2013, the Commission published a
On December 2, 2013, Commerce initiated, and the ITC instituted, five-year sunset reviews of the antidumping duty order on diamond sawblades and parts thereof from China (78 FR 72061 & 78 FR 72216, Dec. 2, 2013). On May 20, 2014, the Commission determined to conduct a full five-year sunset review of the order.
On April 23, 2014, the Commission determined not to conduct a changed circumstances review investigation of the antidumping duty order on diamond sawblades and parts thereof from China.
This notice is published pursuant to section 207.45 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted these investigations effective April 23, 2013, following receipt of petitions filed with the Commission and Commerce by Davis Wire Corp., Kent, Washington and Insteel Wire Products Co., Mount Airy, North Carolina. The final phase of the investigations were scheduled by the Commission following notification of a preliminary determination by Commerce that imports of prestressed concrete steel rail tie wire from China and Mexico were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)).
The Commission completed and filed its determinations in these investigations on June 12, 2014. The views of the Commission are contained in USITC Publication 4473 (June 2014), entitled
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Natisha Taylor, Bureau of Alcohol, Tobacco, Firearms and Explosives, Firearms Industry Programs Branch, 99 New York Avenue NE., Washington, DC 20226. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this Information Collection 1140–0100:
(1)
(2)
(3)
Form number: ATF Form 3310.12.
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: The purpose of this information collection is to require Federal firearms licensees to report multiple sales or other dispositions whenever the licensee sells or otherwise disposes of two or more rifles to the same person at one time or within any five consecutive business days with the following characteristics: (a) Semi-automatic; (b) a caliber greater than .22; and (c) the ability to accept a detachable magazine. This requirement will apply to Federal Firearms Licensees (FFLs) who are dealers and/or pawnbrokers in Arizona, California, New Mexico and Texas.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Brian Muller, Bureau of Alcohol, Tobacco, Firearms and Explosives, 99 New York Avenue NE., Washington, DC 20226. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this Information Collection 1140–0026:
(1)
(2)
(3)
Form number: ATF Form 5400.5.
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
(4)
Primary: Business or other for-profit.
Other: None.
Abstract: Losses or theft of explosives must, by statute be reported within 24 hours of the discovery of the loss or theft. This form contains the minimum information necessary for ATF to initiate criminal investigations.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Desiree Dickinson, Bureau of Alcohol, Tobacco, Firearms and Explosives, 244 Needy Road, Martinsburg, WV 25405. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this Information Collection 1140–0084:
(1) Type of Information Collection: Revision of an existing collection.
(2) Title of the Form/Collection: Application and Permit for Temporary Importation of Firearms and Ammunition by Nonimmigrant Aliens.
(3) Agency form number, if any, and the applicable component of the Department sponsoring the collection:
Form number: ATF Form 6NIA (5330.3D).
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice
(4) Affected public who will be asked or required to respond, as well as a brief abstract:
Primary: Individuals or households.
Other: None.
Abstract: This information collection is needed to determine if the firearms or ammunition listed on the application qualify for importation and to certify that a nonimmigrant alien is in compliance with 18 U.S.C. 922(g)(5)(B). This application will also serve as the authorization for importation.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: An estimated 15,000 respondents will take 30 minutes to complete the form.
(6) An estimate of the total public burden (in hours) associated with the collection:
The estimated annual public burden associated with this collection is 7,500 hours.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Desiree Dickinson, Bureau of Alcohol, Tobacco, Firearms and Explosives, 244 Needy Road, Martinsburg, WV 25405. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this Information Collection 1140–0007:
(1)
(2)
(3)
Form number: ATF Form 6A (5330.3C).
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
(4)
Primary: Individual or households.
Other: Business or other for-profit; Not-for-profit institutions.
Abstract: The data provided by this information collection request is used by ATF to determine if articles imported meet the statutory and regulatory criteria for importation and if the articles shown on the permit application have been actually imported.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
Drug Enforcement Administration (DEA), Department of Justice Dispensing Records of Individual Practitioners.
30-day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until July 23, 2014.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Erika Gehrmann, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
Primary: Business or other for-profit.
Other: None.
21 U.S.C. 827 requires individual practitioners to keep records of the dispensing and administration of controlled substances. This information is needed to maintain a closed system of distribution.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E.405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the
The purpose of this notice is to allow for an additional 30 days for public comment until July 23, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Desiree Dickinson, Bureau of Alcohol, Tobacco, Firearms and Explosives, 244 Needy Road, Martinsburg, WV 25405. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this Information Collection 1140–0006:
(1)
(2)
(3)
Form number: ATF Form 6 Part II (5330.3B).
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
(4)
Primary: Individual or households.
Other: Business or other for-profit; Federal Government; State, Local, or Tribal Government.
Abstract: The information collection is needed to determine whether firearms, ammunition and implements of war are eligible for importation into the United States. The information is used to secure authorization to import such articles. The form is used by persons who are members of the United States Armed Forces.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
Drug Enforcement Administration (DEA), Department of Justice.
30-day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until July 23, 2014.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Erika Gehrmann, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
Controlled substances manufacturers and distributors must report acquisition/distribution transactions to the DEA to comply with Federal law and international treaty obligations. This information helps to ensure a closed system of distribution for these substances.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–.405B, Washington, DC 20530.
Drug Enforcement Administration (DEA), Department of Justice.
30-day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until July 23, 2014.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Erika Gehrmann, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152.
Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or send email to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
Title 21 CFR 1312.21 and 1312.22 require persons who export controlled substances in Schedules I and II and who reexport controlled substances in Schedules I and II and narcotic controlled substances in Schedules III and IV to obtain a permit from DEA. Information is used to issue export permits, exercise control over exportation of controlled substances, and compile data for submission to the United Nations to comply with treaty requirements.
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W–1407B, Washington, DC 20530.
Drug Enforcement Administration, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until August 22, 2014.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Deb Augustine, Acting Chief, Demand Reduction Section, 8701 Morrissette Drive, Springfield, VA 22152 (phone: 202–307–4777).
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
DEA is requesting approval of an extension, with change, to an existing collection that requests information from Boy/Girl Scout Troop Leaders who express an interest in participating in DEA Red Ribbon Week Activities. This information is then used to mail patches to participants as indication of completion of the suggested activities.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Prohibited Transaction Class Exemption 1998–54 Relating to Certain Employee Benefit Plan Foreign Exchange Transactions Executed Pursuant to Standing Instructions,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 23, 2014.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–6881 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the information collection requirements contained in Prohibited Transaction Class Exemption (PTE) 1998–54, which relates to certain employee benefit plan foreign exchange transactions executed pursuant to standing instructions. The PTE permits certain foreign exchange transactions between employee benefit plans and certain banks and broker-dealers that are parties in interest with respect to such plans. In order that such transactions will be consistent with the requirements of Employee Retirement Income Security Act (ERISA) section 408(a), 29 U.S.C. 1108(a), the PTE imposes the following conditions at the time the foreign exchange transaction is entered into: (a) The terms of the transaction must not be less favorable than those available in comparable arm's-length transactions between unrelated parties or those afforded by the bank or the broker-dealer in comparable arm's-length transactions involving unrelated parties; (b) neither the bank nor the broker-dealer has any discretionary authority with respect to the investment of the assets involved in the transaction; (c) the bank or broker-dealer maintains at all times written policies and procedures regarding the handling of foreign exchange transactions for plans for which it is a party in interest which ensure that the party acting for the bank or the broker-dealer knows it is dealing with a plan; (d) the transactions are performed in accordance with a written authorization executed in advance by an independent fiduciary of the plan whose assets are involved in the transaction and who is independent of the bank or broker-dealer engaging in the covered transaction; (e) transactions are executed within one business day of receipt of funds; (f) the bank or the broker-dealer, at least once a day at a time specified in written procedures, establishes a rate or range of rates of exchange to be used for the transactions covered by this exemption and executes transactions at either the next scheduled time or no later than twenty-four (24) hours after receipt of notice of receipt of funds; (g) prior to execution of a transaction, the bank or the broker-dealer provides the authorizing fiduciary with a copy of the applicable written policies and procedures for foreign exchange transactions involving income item conversions and
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on June 30, 2014. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
The Legal Services Corporation's Finance Committee will meet telephonically on June 27, 2014. The meeting will commence at 1:00 p.m., EDT, and will continue until the conclusion of the Committee's agenda.
John N. Erlenborn Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington, DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below.
• Call toll-free number: 1–866–451–4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “MUTE” your telephone.
Open.
1. Approval of agenda.
2. Discussion with Management regarding recommendation for LSC's fiscal year 2016 budget request.
3. Public comment.
4. Consider and act on other business.
5. Consider and act on adjournment of meeting.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295–1500. Questions may be sent by electronic mail to
LSC complies with the Americans with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals needing other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295–1500 or
National Science Foundation.
Request for comments.
This notice announces the intent of the National Center for Science and Engineering Statistics (NCSES) at the National Science Foundation (NSF) to discontinue data collection for Part 2 of the Survey of Science and Engineering Research Facilities (Facilities Survey) (OMB Clearance Number 3145–0101) on computing and networking capacity at academic institutions. This notice is in response to an effort by NCSES to assess the value of these data.
Send your written comments by August 15, 2014.
Send your written comments to Mr. John R. Gawalt, Director, National Center for Science and Engineering Statistics, National Science Foundation, 4201 Wilson Blvd., Room 965, Arlington, VA 22230. Send email comments to
Mr. John R. Gawalt, Director, National Center for Science and Engineering Statistics, National Science Foundation at (703) 292–7776 or email at
Data on the academic research infrastructure are collected biennially through the NSF's congressionally mandated Facilities Survey. The survey originated in 1986 in response to Congress's concern about the state of research facilities at the nation's colleges and universities. Part 1 of the Facilities Survey collects data on the amount, condition, construction, repair, renovation, and funding of research facilities. This section, focusing largely on research space, will continue. Recognizing the growing use of networking and computing capacity (cyberinfrastructure) in conducting research, a new set of questions on these topics was added to the FY 2003 Facilities Survey and revised for the FY 2005, FY 2007, FY 2009, FY 2011 and FY 2013 surveys.
NCSES has continually reviewed the Part 2 questionnaire in an attempt to stay current with the rapidly changing developments in academic R&D cyberinfrastructure. Despite these efforts, NCSES believes that the survey provides little utility to policymakers, researchers and other data users. Field experts and review panels have noted several critical shortcomings of Part 2 collections. Rapid advances in research cyberinfrastructure make identifying current and valuable metrics difficult. This challenge is compounded by the length of the data collection and publication cycle, which typically requires 16 months after the end of the relevant fiscal year. The continual need to update metrics combined with time required for production and publication reduces the relevancy of the data. In addition, to facilitate data collection and ease survey response burden, respondents to the Facilities Survey are asked to report only on centrally-administered cyberinfrastructure capacity. More than 20 of the top 100 academic research institutions (based on research expenditures) cannot report data on their high-performance computing because these resources are not centrally-administered. Another 15 or more institutions in the top 100 report exceptionally low totals for the same reason. Because so many of the top research universities are unable to adequately report their total computing and networking capacity, the utility of these data are severely undermined. These institution-specific differences limit the ability to present national totals and trends as well as the ability to compare many leading institutions.
The NCSES is interested in all comments, especially from government policy makers, academic institution respondents, and academic researchers that specify concerns related to the discontinuation of Part 2 of the Facilities Survey.
Nuclear Regulatory Commission.
Generic technical specification travelers; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is soliciting public comment on its generic technical specification travelers (GTSTs) for the development of standard technical specifications (STS) for the AP1000 certified reactor design based on the AP1000 generic technical specifications (GTS). Each GTST documents the safety basis for proposed improvements to one or more GTS sections that will result in corresponding sections in the AP1000 STS, which will be the subject of a NUREG (similar to NUREG–1431, STS for Westinghouse Plants). The purpose of the GTSTs is to provide an orderly method of soliciting and processing
Submit comments by September 22, 2014. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
•
•
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Craig Harbuck, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–3140, email:
Please refer to Docket ID NRC–2014–0147 when contacting the NRC about the availability of information for this action. You may obtain information related to this action, which the NRC possesses and is publicly available, by any of the following methods:
•
•
•
Please include Docket ID NRC–2014–0147 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The content of each GTST, which includes the associated technical specification subsection(s), resides in an automated database application. Following incorporation of public comment resolutions into the database and NRC approval of the updated GTSTs, the database application will be used to efficiently generate files for the AP1000 STS, which will be published as a NUREG.
The proposed improvements to the GTS include: (1) Applicable changes made to operating reactor STS since Rev. 2 of NUREG–1431 that are contained in NRC-approved Technical Specification Task Force (TSTF) Travelers; (2) addition of site-specific information provided by the AP1000 lead plant combined license (COL) applicant (i.e., Southern Nuclear Operating Company for Vogtle Electric Generating Plant [VEGP] Units 3 and 4) that was approved for the plant-specific TS issued with the COL—site-specific information will be denoted by enclosing it in brackets in the AP1000 STS; (3) standard departures from the GTS, GTS Bases, or both that were proposed by the lead plant COL applicant and approved as an exemption from the GTS, GTS Bases, or both in the plant-specific TS issued with the COL; (4) changes to the lead plant's plant-specific TS that were approved by the NRC as part of an amendment to the COL (e.g., Amendment 13 to COL No. NPF–91 for VEGP Unit 3); and (5) other changes recommended by the NRC staff, including clarifications and enhancements of the GTS Bases.
In addition to automating production of files for GTSTs and AP1000 STS, in the future, the database application may be used to more efficiently process AP1000 STS change proposals and—after issuance of COLs and AP1000 plants begin operation—COL amendment applications to change plant-specific TS. A nuclear power reactor licensee, for example, could request plant-specific TS changes based on NRC approved GTST changes after confirming the applicability of the GTST's safety basis for the changes to the reactor's licensing basis and design. The NRC staff is requesting comment on the draft GTSTs prior to issuing the initial AP1000 STS and announcing its availability for referencing in license amendment applications.
The Design Control Document (DCD) in a design certification application for a new reactor design includes generic technical specifications (GTS). A Combined Operating License (COL) applicant who references a certified reactor design must adopt the DCD GTS approved by rulemaking (e.g., Appendix D to Part 52 of Title 10 of the
Current operating reactor STS (NUREG–1430, –1431, –1432, –1433, and –1434) are revised through the industry's pressurized water reactor (PWR) and boiling water reactor (BWR) owner groups' Technical Specifications Task Force (TSTF) working with TS staff of the Office of Nuclear Reactor Regulation (NRR) with participation by
The NRO TS staff is creating STS NUREGs for the new reactor certified designs in order to maintain consistency and standardization of TS. The NRO TS staff will manage changes to the new reactor STS using a web-based automated system currently under development. The new reactor STS change process is envisioned to eventually be included with the TSTF change process for operating reactor STS. Applying the TSTF change process to new reactor STS NUREGs will promote consistency with operating reactor STS NUREGs and maintain standardization among all reactor designs for similar or equivalent TS requirements.
The NRO TS staff is preparing AP1000 STS based upon the GTS with applicable TSTF changes approved for Westinghouse STS incorporated. Each of the approved TSTF changes to Westinghouse STS (NUREG–1431, Revision 2) has been analyzed for applicability and a GTST has been created for each AP1000 GTS section incorporating the applicable approved TSTF changes. The GTSTs are designed to facilitate COL holder adoption. The GTST files are kept in a database that can be used to generate the latest version of the AP1000 STS. VEGP Units 3 and 4 (the AP1000 Reference COLs, or lead plants) were licensed to AP1000 DCD Revision 19. Shortly after COL issuance, the COL holder submitted a license amendment request (LAR) to upgrade the VEGP Units 3 and 4 plant-specific TS via approved license amendments in accordance with 10 CFR 50.90. The VEGP Units 3 and 4 license amendments to upgrade the plant-specific TS are reflected in the draft AP1000 GTSTs for which the staff is soliciting comments.
The NRC staff will evaluate any comments received, provide a response to the comments and make appropriate changes to the GTST documents. Following resolution of public comments the final GTSTs will be used to create Revision 0 of the AP1000 STS NUREG. The availability of the AP1000 STS NUREG Revision 0 and the supporting GTST documents will then be announced for consideration by licensees to upgrade plant-specific TS. Each amendment application made in response to the notice of availability will be processed and noticed in accordance with applicable rules and NRC procedures.
This proposal to make available NRC approved changes to GTS provisions, as documented in GTSTs and incorporated in the AP1000 STS and associated STS Bases, for adoption in plant-specific TS is applicable to all AP1000 COL holders. COL holders are anticipated to propose license amendments to update plant-specific TS with applicable GTST changes. To efficiently process the incoming license amendment applications, the staff requests that each licensee applying for changes contained in approved GTSTs include in its application justifications for adopting the proposed changes that are consistent with the safety basis given in the GTSTs; the amendment application should also justify any plant specific deviations from the approved GTST changes proposed for adoption.
If the staff announces the availability of a GTST change, licensees wishing to adopt the change must submit an application in accordance with applicable rules and other regulatory requirements. For each application the staff will publish a notice of consideration of issuance of amendment to facility operating licenses, a proposed no significant hazards consideration determination, and a notice of opportunity for a hearing.
For the Nuclear Regulatory Commission.
Office of Special Counsel.
Second Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), and implementing regulations at 5 CFR part 1320, the U.S. Office of Special Counsel (OSC), plans to request approval from the Office of Management and Budget (OMB) for use of three previously approved information collections consisting of three complaint forms. These collections are listed below. The current OMB approval for Forms OSC–11, OSC–12, OSC–13 expired on 2/28/14. We are submitting all three forms for renewal, based on the actual date of expiration. We are currently collecting requirements for future modifications to these forms; however, currently there are no changes being submitted with this request for renewal of the use of these forms. Current and former Federal employees, employee representatives, other Federal agencies, state and local government employees, and the general public are invited for the second time to comment on this information collection. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of OSC functions, including whether the information will have practical utility; (b) the accuracy of OSC's estimate of the burden of the proposed collections 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 should be received by July 23, 2014.
Karl Kammann, Director of Finance, at the address shown above; by facsimile at (202) 254–3711.
OSC is an independent agency responsible for, among other things, (1) investigation of allegations of prohibited personnel practices defined by law at 5 U.S.C. 2302(b), protection of whistleblowers, and certain other illegal employment practices under titles 5 and 38 of the U.S. Code, affecting current or former Federal employees or applicants for employment, and covered state and local government employees; and (2) the interpretation and enforcement of Hatch Act provisions on political activity in chapters 15 and 73 of title 5 of the U.S. Code.
Copies of the OSC Forms 11, 12, and 13 can be found at:
Peace Corps.
30-Day notice and request for comments.
The Peace Corps will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval. The purpose of this notice is to allow 30 days for public comment in the
Submit comments on or before July 23, 2014.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB approval number and should be sent via email to:
Denora Miller, FOIA/Privacy Act Officer, Peace Corps, 1111 20th Street NW., Washington, DC 20526, (202) 692–1236, or email at
The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on Peace Corps' services will be unavailable.
Peace Corps will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are non-controversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
• Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting an amendment to Priority Mail Express, Priority Mail & First-Class Package Service Contract 2 on 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
David A. Trissell, General Counsel, at 202–789–6820.
On June 13, 2014, the Postal Service filed notice that it has agreed to an Amendment to the existing Priority Mail Express, Priority Mail, and First-Class Package Service Contract 2 negotiated service agreement approved in this docket.
The Postal Service also filed an unredacted version of the Amendment under seal. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal.
The Amendment modifies the price categories for which the customer's packages are eligible. The Postal Service asserts that the amendment will not affect the cost coverage of the contract as presented in the initial filing in this docket.
The Postal Service intends for the Amendment to become effective one business day after the date that the Commission completes its review of the Notice. Notice at 1. The Postal Service asserts that the Amendment will not impair the ability of the contract to comply with 39 U.S.C. 3633.
The Commission invites comments on whether the changes presented in the Postal Service's Notice 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 June 24, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2014–37 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Curtis E. Kidd to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than June 24, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
The RRB invites comments on the proposed collections of information to determine (1) the practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of the information that is the subject of collection; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology. Comments to the RRB or OIRA must contain the OMB control number of the ICR. For proper consideration of your comments, it is best if the RRB and OIRA receive them within 30 days of the publication date.
Under Section 12(a) of the Railroad Retirement Act (RRA), the Railroad Retirement Board (RRB) is authorized to select, make payments to, and to conduct transactions with, a beneficiary's relative or some other person willing to act on behalf of the beneficiary as a representative payee. The RRB is responsible for determining if direct payment to the beneficiary or payment to a representative payee would best serve the beneficiary's interest. Inherent in the RRB's authorization to select a representative payee is the responsibility to monitor the payee to assure that the beneficiary's interests are protected. The RRB utilizes Form G–99d, Parental Custody Report, to obtain information needed to verify that a parent-for-child representative payee still has custody of the child. One response is required from each respondent.
Comments regarding the information collection should be addressed to Charles Mierzwa, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611–2092 or
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Mark N. Zaruba, Senior Counsel at (202) 551–6878, or Mary Kay Frech, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is a business trust organized under the laws of the Commonwealth of Massachusetts and is registered under the Act as an open-end management investment company with multiple series.
2. The Initial Adviser is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”) and will be the investment adviser to the Funds (defined below). Any other Adviser (defined below) will also be registered as an investment adviser under the Advisers Act. The Adviser may enter into sub-advisory agreements with one or more investment advisers to act as sub-advisers to particular Funds (each, a “Sub-Adviser”). Any Sub-Adviser will either be registered under the Advisers Act or will not be required to register thereunder.
3. The Trust will enter into a distribution agreement with one or more distributors (each, a “Distributor”). Each Distributor will be a broker-dealer (“Broker”) registered under the Securities Exchange Act of 1934 (the “Exchange Act”) and will act as distributor and principal underwriter of one or more of the Funds. The Distributor of any Fund may be an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of that Fund's Adviser and/or Sub-Advisers. No Distributor will be affiliated with any Exchange (defined below).
4. Applicants request that the order apply to the initial series of the Trust described in the application (“Initial Fund”), as well as any additional series of the Trust and other open-end management investment companies, or series thereof, that may be created in the future (“Future Funds”), each of which will operate as an exchanged-traded fund (“ETF”) and will track a specified index comprised solely of domestic or foreign equity and/or fixed income securities (each, an “Underlying Index”). Any Future Fund will (a) be advised by the Initial Adviser or an entity controlling, controlled by, or under common control with the Initial Adviser (each, an “Adviser”) and (b) comply with the terms and conditions of the application. The Initial Fund and Future Funds, together, are the “Funds.”
5. Each Fund will hold certain securities, currencies, other assets and other investment positions (“Portfolio Holdings”) selected to correspond generally to the performance of its Underlying Index. Certain Funds will be based on Underlying Indexes which will be comprised of equity and/or fixed income securities issued by one or more of the following categories of issuers: (i) Domestic issuers; and (ii) non-domestic issuers meeting the requirements for trading in U.S. markets. Other Funds will be based on Underlying Indexes which will be comprised of foreign and domestic or solely foreign equity and/or fixed income securities (“Foreign Funds”).
6. Applicants represent that each Fund will invest at least 80% of its assets (excluding securities lending collateral) in the component securities of its respective Underlying Index (“Component Securities”) and TBA Transactions,
7. The Trust may offer Funds that seek to track Underlying Indexes constructed using 130/30 investment strategies (“130/30 Funds”) or other long/short investment strategies (“Long/Short Funds”). Each Long/Short Fund will establish (i) exposures equal to approximately 100% of the long positions specified by the Long/Short Index
8. A Fund will utilize either a replication or representative sampling strategy to track its Underlying Index. A Fund using a replication strategy will invest in the Component Securities of its Underlying Index in the same approximate proportions as in such Underlying Index. A Fund using a representative sampling strategy will hold some, but not necessarily all of the Component Securities of its Underlying Index. Applicants state that a Fund
9. Each Fund will be entitled to use its Underlying Index pursuant to either a licensing agreement with the entity that compiles, creates, sponsors or maintains the Underlying Index (each, an “Index Provider”) or a sub-licensing arrangement with the Adviser, which will have a licensing agreement with such Index Provider.
10. Applicants recognize that Self-Indexing Funds could raise concerns regarding the ability of the Affiliated Index Provider to manipulate the Underlying Index to the benefit or detriment of the Self-Indexing Fund. Applicants further recognize the potential for conflicts that may arise with respect to the personal trading activity of personnel of the Affiliated Index Provider who have knowledge of changes to an Underlying Index prior to the time that information is publicly disseminated. Prior orders granted to self-indexing ETFs (“Prior Self-Indexing Orders”) addressed these concerns by creating a framework that required: (i) Transparency of the Underlying Indexes; (ii) the adoption of policies and procedures not otherwise required by the Act designed to mitigate such conflicts of interest; (iii) limitations on the ability to change the rules for index compilation and the component securities of the index; (iv) that the index provider enter into an agreement with an unaffiliated third party to act as “Calculation Agent”; and (v) certain limitations designed to separate employees of the index provider, adviser and Calculation Agent (clauses (ii) through (v) are hereinafter referred to as “Policies and Procedures”).
11. Instead of adopting the same or similar Policies and Procedures, applicants propose that each day that a Fund, the NYSE and the national securities exchange (as defined in section 2(a)(26) of the Act) (an “Exchange”) on which the Fund's Shares are primarily listed (“Listing Exchange”) are open for business, including any day that a Fund is required to be open under section 22(e) of the Act (a “Business Day”), each Self-Indexing Fund will post on its Web site, before commencement of trading of Shares on the Listing Exchange, the identities and quantities of the Portfolio Holdings held by the Fund that will form the basis for the Fund's calculation of its NAV at the end of the Business Day. Applicants believe that requiring Self-Indexing Funds to maintain full portfolio transparency will provide an effective alternative mechanism for addressing any such potential conflicts of interest.
12. Applicants represent that each Self-Indexing Fund's Portfolio Holdings will be as transparent as the portfolio holdings of existing actively managed ETFs. Applicants observe that the framework set forth in the Prior Self-Indexing Orders was established before the Commission began issuing exemptive relief to allow the offering of actively-managed ETFs.
13. In addition, applicants do not believe the potential for conflicts of interest raised by the Adviser's use of the Underlying Indexes in connection with the management of the Self Indexing Funds and the Affiliated Accounts will be substantially different from the potential conflicts presented by an adviser managing two or more registered funds. Both the Act and the Advisers Act contain various protections to address conflicts of interest where an adviser is managing two or more registered funds and these protections will also help address these conflicts with respect to the Self-Indexing Funds.
14. The Adviser and any Sub-Adviser have adopted or will adopt, pursuant to rule 206(4)–7 under the Advisers Act,
15. To the extent the Self-Indexing Funds transact with an Affiliated Person of the Adviser or Sub-Adviser, such transactions will comply with the Act, the rules thereunder and the terms and conditions of the requested order. In this regard, each Self-Indexing Fund's board of directors or trustees (“Board”) will periodically review the Self-Indexing Fund's use of an Affiliated Index Provider. Subject to the approval of the Self-Indexing Fund's Board, the Adviser, Affiliated Persons of the Adviser (“Adviser Affiliates”) and Affiliated Persons of any Sub-Adviser (“Sub-Adviser Affiliates”) may be authorized to provide custody, fund accounting and administration and transfer agency services to the Self-Indexing Funds. Any services provided by the Adviser, Adviser Affiliates, Sub-Adviser and Sub-Adviser Affiliates will be performed in accordance with the provisions of the Act, the rules under the Act and any relevant guidelines from the staff of the Commission.
16. In light of the foregoing, applicants believe it is appropriate to allow the Self-Indexing Funds to be fully transparent in lieu of Policies and Procedures from the Prior Self-Indexing Orders discussed above.
17. The Shares of each Fund will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified below, purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).
18. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash;
19. Creation Units will consist of specified large aggregations of Shares, e.g., at least 25,000 Shares, and it is expected that the initial price of a Creation Unit will range from $500,000 to $25 million. All orders to purchase Creation Units must be placed with the Distributor by or through an “Authorized Participant” which is either (1) a “Participating Party,” i.e., a broker-dealer or other participant in the Continuous Net Settlement System of the NSCC, a clearing agency registered with the Commission, or (2) a participant in The Depository Trust Company (“DTC”) (“DTC Participant”), which, in either case, has signed a participant agreement with the Distributor. The Distributor will be responsible for transmitting the orders to the Funds and will furnish to those placing such orders confirmation that the orders have been accepted, but applicants state that the Distributor may reject any order which is not submitted in proper form.
20. Each Business Day, before the open of trading on the Listing Exchange, each Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Deposit Instruments and the Redemption Instruments, as well as the estimated Cash Amount (if any), for that day. The list of Deposit Instruments and Redemption Instruments will apply until a new list is announced on the following Business Day, and there will be no intra-day changes to the list except to correct errors in the published list. Each Listing Exchange will disseminate, every 15 seconds during regular Exchange trading hours, through the facilities of the Consolidated Tape Association, an amount for each Fund stated on a per individual Share basis representing the sum of (i) the estimated Cash Amount and (ii) the current value of the Deposit Instruments.
21. Transaction expenses, including operational processing and brokerage costs, will be incurred by a Fund when investors purchase or redeem Creation Units in-kind and such costs have the potential to dilute the interests of the Fund's existing shareholders. Each Fund will impose purchase or redemption transaction fees (“Transaction Fees”) in connection with effecting such purchases or redemptions of Creation Units. In all cases, such Transaction Fees will be limited in accordance with requirements of the Commission applicable to management investment companies offering redeemable securities. Since the Transaction Fees are intended to defray the transaction expenses as well as to prevent possible shareholder dilution resulting from the purchase or redemption of Creation Units, the Transaction Fees will be borne only by such purchasers or redeemers.
22. Shares of each Fund will be listed and traded individually on an Exchange. It is expected that one or more member firms of an Exchange will be designated to act as a market maker (each, a “Market Maker”) and maintain a market for Shares trading on the Exchange. Prices of Shares trading on an Exchange will be based on the current bid/offer market. Transactions involving the sale of Shares on an Exchange will be subject to customary brokerage commissions and charges.
23. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs. Market Makers, acting in their roles to provide a fair and orderly secondary market for the Shares, may from time to time find it appropriate to purchase or redeem Creation Units. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
24. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Fund, or tender such Shares for redemption to the Fund, in Creation Units only. To redeem, an investor must accumulate enough Shares to constitute a Creation Unit. Redemption requests must be placed through an Authorized Participant. A redeeming investor may pay a Transaction Fee, calculated in the same manner as a Transaction Fee payable in connection with purchases of Creation Units.
25. Neither the Trust nor any Fund will be advertised or marketed or otherwise held out as a traditional open-end investment company or a “mutual fund.” Instead, each such Fund will be marketed as an “ETF.” All marketing materials that describe the features or method of obtaining, buying or selling Creation Units, or Shares traded on an Exchange, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and will disclose that the owners of Shares may acquire those Shares from the Fund or tender such Shares for redemption to the Fund in Creation Units only. The Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to beneficial owners of Shares.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provision of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the owner, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Funds to register as open-end management investment companies and issue Shares that are redeemable in Creation Units only. Applicants state that investors may purchase Shares in Creation Units and redeem Creation Units from each Fund. Applicants further state that because Creation Units may always be purchased and redeemed at NAV, the price of Shares on the secondary market should not vary materially from NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c–1 under the Act generally requires that a dealer selling, redeeming or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c–1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c–1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c–1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers, and (c) ensure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve a Fund as a party and will not result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the price at which Shares trade will be disciplined by arbitrage opportunities created by the option continually to purchase or redeem Shares in Creation Units, which should help prevent Shares from trading at a material discount or premium in relation to their NAV.
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants state that settlement of redemptions for Foreign Funds will be contingent not only on the settlement cycle of the United States market, but also on current delivery cycles in local markets for underlying foreign portfolio securities held by a Foreign Fund. Applicants state that the delivery cycles currently practicable for transferring Redemption Instruments to redeeming investors, coupled with local market holiday schedules, may require a delivery process of up to fifteen (15) calendar days.
8. Applicants believe that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants propose that allowing redemption payments for Creation Units of a Foreign Fund to be made within fifteen calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants suggest that a redemption payment occurring within fifteen calendar days following a redemption request would adequately afford investor protection.
9. Applicants are not seeking relief from section 22(e) with respect to Foreign Funds that do not effect creations and redemptions of Creation Units in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total
11. Applicants request an exemption to permit registered management investment companies and unit investment trusts (“UITs”) that are not advised or sponsored by the Adviser, and not part of the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act as the Underlying Funds (such management investment companies are referred to as “Investing Management Companies,” such UITs are referred to as “Investing Trusts,” and Investing Management Companies and Investing Trusts are collectively referred to as “Funds of Funds”),
12. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (the “Fund of Funds Adviser”) and may be sub-advised by investment advisers within the meaning of section 2(a)(20)(B) of the Act (each a “Fund of Funds Sub-Adviser”). Any investment adviser to an Investing Management Company will be registered under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”).
13. Applicants submit that the proposed conditions to the requested relief adequately address the concerns underlying the limits in sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees and overly complex fund structures. Applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
14. Applicants believe that neither a Fund of Funds nor a Fund of Funds Affiliate would be able to exert undue influence over an Underlying Fund.
15. Applicants propose other conditions to limit the potential for undue influence over the Underlying Funds, including that no Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Underlying Fund) will cause an Underlying Fund to purchase a security in an offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Fund of Funds Adviser, Fund of Funds Sub-Adviser, employee or Sponsor of the Fund of Funds, or a person of which any such officer, director, member of an advisory board, Fund of Funds Adviser or Fund of Funds Sub-Adviser, employee or Sponsor is an affiliated person (except that any person whose relationship to the Underlying Fund is covered by section 10(f) of the Act is not an Underwriting Affiliate).
16. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Underlying Fund in which the Investing Management Company may invest. In addition, under condition B.5., a Fund of Funds Adviser, or a Fund of Funds' trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b–1 under the Act) received from an Underlying Fund by the Fund of Funds Adviser, trustee or Sponsor or an affiliated person of the Fund of Funds Adviser, trustee or Sponsor, other than any advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor or its affiliated person by an Underlying Fund, in connection with the investment by the Fund of Funds in the Underlying Fund. Applicants state that any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
17. Applicants submit that the proposed arrangement will not create an
18. Applicants also note that an Underlying Fund may choose to reject a direct purchase of Underlying Fund Shares in Creation Units by a Fund of Funds. To the extent that a Fund of Funds purchases Underlying Fund Shares in the secondary market, an Underlying Fund would still retain its ability to reject any initial investment by a Fund of Funds in excess of the limits of section 12(d)(1)(A) by declining to enter into a FOF Participation Agreement with the Fund of Funds.
19. Sections 17(a)(1) and (2) of the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person, from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the outstanding voting securities of the other person, (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with the power to vote by the other person, and (c) any person directly or indirectly controlling, controlled by or under common control with the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company, and provides that a control relationship will be presumed where one person owns more than 25% of a company's voting securities. The Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Adviser or an entity controlling, controlled by or under common control with an Adviser (an “Affiliated Fund”). Any investor, including Market Makers, owning 5% or holding in excess of 25% of the Trust or such Funds, may be deemed affiliated persons of the Trust or such Funds. In addition, an investor could own 5% or more, or in excess of 25% of the outstanding shares of one or more Affiliated Funds making that investor a Second-Tier Affiliate of the Funds.
20. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act pursuant to sections 6(c) and 17(b) of the Act to permit persons that are Affiliated Persons of the Funds, or Second-Tier Affiliates of the Funds, solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25%, of the outstanding Shares of one or more Funds; (b) an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25%, of the shares of one or more Affiliated Funds, to effectuate purchases and redemptions “in-kind.”
21. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making “in-kind” purchases or “in-kind” redemptions of Shares of a Fund in Creation Units. Both the deposit procedures for “in-kind” purchases of Creation Units and the redemption procedures for “in-kind” redemptions of Creation Units will be effected in exactly the same manner for all purchases and redemptions, regardless of size or number. There will be no discrimination between purchasers or redeemers. Deposit Instruments and Redemption Instruments for each Fund will be valued in the identical manner as those Portfolio Holdings currently held by such Fund and the valuation of the Deposit Instruments and Redemption Instruments will be made in an identical manner regardless of the identity of the purchaser or redeemer. Applicants do not believe that “in-kind” purchases and redemptions will result in abusive self-dealing or overreaching, but rather assert that such procedures will be implemented consistently with each Fund's objectives and with the general purposes of the Act. Applicants believe that “in-kind” purchases and redemptions will be made on terms reasonable to applicants and any affiliated persons because they will be valued pursuant to verifiable objective standards. The method of valuing Portfolio Holdings held by a Fund is identical to that used for calculating “in-kind” purchase or redemption values and therefore creates no opportunity for affiliated persons or Second-Tier Affiliates of applicants to effect a transaction detrimental to the other holders of Shares of that Fund. Similarly, applicants submit that, by using the same standards for valuing Portfolio Holdings held by a Fund as are used for calculating “in-kind” redemptions or purchases, the Fund will ensure that its NAV will not be adversely affected by such securities transactions. Applicants also note that the ability to take deposits and make redemptions “in-kind” will help each Fund to track closely its Underlying Index and therefore aid in achieving the Fund's objectives.
22. Applicants also seek relief under sections 6(c) and 17(b) from section 17(a) to permit an Underlying Fund that is an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds to sell its Underlying Fund Shares to and redeem its Underlying Fund Shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of index-based ETFs.
2. As long as a Fund operates in reliance on the requested order, Shares of such Fund will be listed on an Exchange.
3. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Fund and tender those Shares for redemption to a Fund in Creation Units only.
4. The Web site, which is and will be publicly accessible at no charge, will contain, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or the midpoint of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
5. Each Self-Indexing Fund, Long/Short Fund and 130/30 Fund will post on the Web site on each Business Day, before commencement of trading of Shares on the Exchange, the Fund's Portfolio Holdings.
6. No Adviser or any Sub-Adviser, directly or indirectly, will cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for a Fund through a transaction in which the Fund could not engage directly.
1. The members of a Fund of Funds' Advisory Group will not control (individually or in the aggregate) an Underlying Fund within the meaning of section 2(a)(9) of the Act. The members of a Fund of Funds' Sub-Advisory Group will not control (individually or in the aggregate) an Underlying Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Underlying Fund, the Fund of Funds' Advisory Group or the Fund of Funds' Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of an Underlying Fund, it will vote its Underlying Fund Shares of the Underlying Fund in the same proportion as the vote of all other holders of the Underlying Fund's Shares. This condition does not apply to the Fund of Funds' Sub-Advisory Group with respect to an Underlying Fund for which the Fund of Funds' Sub-Adviser or a person controlling, controlled by or under common control with the Fund of Funds' Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in an Underlying Fund to influence the terms of any services or transactions between the Fund of Funds or Fund of Funds Affiliate and the Underlying Fund or an Underlying Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the Fund of Funds Adviser and Fund of Funds Sub-Adviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or a Fund of Funds Affiliate from an Underlying Fund or Underlying Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in Underlying Fund Shares exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board of the Underlying Fund, including a majority of the disinterested directors or trustees, will determine that any consideration paid by the Underlying Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (i) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Underlying Fund; (ii) is within the range of consideration that the Underlying Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Underlying Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment adviser(s).
5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Underlying Fund under rule 12b-l under the Act) received from an Underlying Fund by the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated person of the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, other than any advisory fees paid to the Fund of Funds Adviser, trustee or Sponsor of an Investing Trust, or its affiliated person by the Underlying Fund, in connection with the investment by the Fund of Funds in the Underlying Fund. Any Fund of Funds Sub-Adviser will waive fees otherwise payable to the Fund of Funds Sub-Adviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from an Underlying Fund by the Fund of Funds Sub-Adviser, or an affiliated person of the Fund of Funds Sub-Adviser, other than any advisory fees paid to the Fund of Funds Sub-Adviser or its affiliated person by the Underlying Fund, in connection with the investment by the Investing Management Company in the Underlying Fund made at the direction of the Fund of Funds Sub-Adviser. In the event that the Fund of Funds Sub-Adviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Underlying Fund) will cause an Underlying Fund to purchase a security in any Affiliated Underwriting.
7. The Board of an Underlying Fund, including a majority of the disinterested directors or trustees, will adopt
8. Each Underlying Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Underlying Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the determinations of the Board of the Underlying Fund were made.
9. Before investing in an Underlying Fund in excess of the limit in section 12(d)(1)(A), a Fund of Funds and the Trust will execute a FOF Participation Agreement stating without limitation that their respective boards of directors or trustees and their investment advisers, or trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Underlying Fund Shares in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Underlying Fund of the investment. At such time, the Fund of Funds will also transmit to the Underlying Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Underlying Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Underlying Fund and the Fund of Funds will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Underlying Fund in which the Investing Management Company may invest. These findings and their basis will be fully recorded in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Underlying Fund will acquire securities of an investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent the Underlying Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the Underlying Fund to acquire securities of one or more investment companies for short term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: GXMC and the Trust: Global X Management Company LLC, 623 Fifth Avenue, 15th Floor, New York, New York 10022.
Jane H. Kim, Senior Counsel, at (202) 551–6791 or Melissa Roverts Harke, Branch Chief, at (202) 551–6722 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is a statutory trust organized under the laws of Delaware and is registered with the Commission as an open-end management investment company. Applicants currently intend that the initial series of the Trust will be the Global X Emerging & Frontier Bond ETF (the “Initial Fund”), which will seek exposure to emerging and frontier market debt. The Initial Fund seeks to achieve its investment objective by investing under normal circumstances at least 80% of its total assets in a diversified portfolio of fixed income instruments of varying maturities issued by government, corporate and/or other issuers domiciled in emerging and frontier countries. The Initial Fund may invest a large percentage of its assets in issuers in a single country, a small number of countries, or a particular geographic region.
2. GXMC, a Delaware limited liability company registered with the Commission as an investment adviser under the Investment Adviser Act of 1940 (“Advisers Act”), will be the investment adviser to the Initial Fund. The Advisor (as defined below) may enter into sub-advisory agreements with investment advisers to act as sub-advisors with respect to the Funds (as defined below) (each a “Sub-Advisor”). Applicants state that any Sub-Advisor will be registered, or not subject to registration, under the Advisers Act. The Distributor, a Pennsylvania corporation and registered broker-dealer (“Broker”) under the Securities Exchange Act of 1934 (the “Exchange Act”), will serve as the distributor and principal underwriter of the Initial Fund. Any future distributor and principal underwriter of the Funds (as defined below) would also be a Broker under the Exchange Act and would comply with the terms and conditions of the application.
3. Applicants request that the order apply to the Initial Fund and any future series of the Trust or of any open-end management companies or series thereof that may utilize active management investment strategies (collectively, “Future Funds”). Any Future Fund will (a) be advised by GXMC or an entity controlling, controlled by, or under common control with GXMC (GXMC and each such other entity and any successor thereto included in the term “Advisor”),
4. Applicants request that any exemption under section 12(d)(1)(J) of the Act from sections 12(d)(1)(A) and (B) apply to: (i) Any Fund that is currently or subsequently part of the same “group of investment companies” as the Initial Fund within the meaning of section 12(d)(1)(G)(ii) of the Act; (ii) any principal underwriter for the Fund; (iii) any Brokers selling Shares of a Fund to an Investing Fund (as defined below); and (iv) each management investment company or unit investment trust registered under the Act that is not part of the same “group of investment companies” as the Funds, and that enters into a FOF Participation Agreement (as defined below) with a Fund (such management investment companies, “Investing Management Companies,” such unit investment trusts, “Investing Trusts,” and Investing Management Companies and Investing Trusts together, “Investing Funds”). Investing Funds do not include the Funds.
5. Applicants anticipate that a Creation Unit will consist of at least 25,000 Shares. Applicants anticipate that the trading price of a Share will range from $10 to $100. All orders to purchase Creation Units must be placed with the Distributor by or through a party that has entered into a participant agreement with the Distributor and the transfer agent of the Fund (“Authorized Participant”) with respect to the creation and redemption of Creation Units. An Authorized Participant is either: (a) A Broker or other participant, in the Continuous Net Settlement System of the National Securities Clearing Corporation (“NSCC”), a clearing agency registered with the Commission and affiliated with the Depository Trust Company (“DTC”), or (b) a participant in the DTC (“DTC Participant”).
6. In order to keep costs low and permit each Fund to be as fully invested as possible, Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified below,
7. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount, as described above; (b) if, on a given Business Day, a Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, a Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash; (d) if, on a given Business Day, a Fund requires all Authorized Participants purchasing or redeeming Shares on that day to deposit or receive (as applicable) cash in lieu of some or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i) Such instruments are not eligible for transfer through either the NSCC or DTC; or (ii) in the case of Funds holding non-U.S. investment (“Global Funds”), such instruments are not eligible for trading due to local trading restrictions, local restrictions on securities transfers or other similar circumstances; or (e) if a Fund permits an Authorized Participant to deposit or receive (as applicable) cash in lieu of some or all of the Deposit Instruments or Redemption Instruments, respectively, solely because: (i) Such instruments are, in the case of the purchase of a Creation Unit, not available in sufficient quantity; (ii) such instruments are not eligible for trading by an Authorized Participant or the investor on whose behalf the Authorized Participant is acting; or (iii) a holder of Shares of a Global Fund would be subject to unfavorable income tax treatment if the holder receives redemption proceeds in kind.
8. Each Business Day, before the open of trading on a national securities exchange, as defined in section 2(a)(26) of the Act (“Stock Exchange”), on which Shares are listed, each Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Creation Basket, as well as the estimated Cash Amount (if any), for that day. The published Creation Basket will apply until a new Creation Basket is announced on the following Business Day, and there will be no intra-day changes to the Creation Basket except to correct errors in the published Creation Basket. The Stock Exchange will disseminate every 15 seconds throughout the trading day an amount representing, on a per Share basis, the sum of the current value of the Portfolio Instruments that were publicly disclosed prior to the commencement of trading in Shares on the Stock Exchange.
9. A Fund may recoup the settlement costs charged by NSCC and DTC by imposing a transaction fee on investors purchasing or redeeming Creation Units (the “Transaction Fee”). The Transaction Fee will be borne only by purchasers and redeemers of Creation Units and will be limited to amounts that have been determined appropriate by the Advisor to defray the transaction expenses that will be incurred by a Fund when an investor purchases or redeems Creation Units.
10. Shares will be listed and traded at negotiated prices on a Stock Exchange and traded in the secondary market. Applicants expect that Stock Exchange specialists or market makers (“Market Makers”) will be assigned to Shares. The price of Shares trading on the Stock Exchange will be based on a current bid/offer in the secondary market. Transactions involving the purchases and sales of Shares on the Stock Exchange will be subject to customary brokerage commissions and charges.
11. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs. Specialists or Market Makers, acting in their unique role to provide a fair and orderly secondary market for Shares, also may purchase Creation Units for use in their own market making activities.
12. Shares will not be individually redeemable and owners of Shares may acquire those Shares from a Fund, or tender such shares for redemption to the Fund, in Creation Units only. To redeem, an investor must accumulate enough Shares to constitute a Creation Unit. Redemption requests must be placed by or through an Authorized Participant.
13. Neither the Trust nor any Fund will be marketed or otherwise held out as a “mutual fund.” Instead, each Fund will be marketed as an “actively managed exchange-traded fund”. In any advertising material where features of obtaining, buying or selling Shares traded on the Stock Exchange are described, there will be an appropriate statement to the effect that Shares are not individually redeemable.
14. The Funds' Web site, which will be publicly available prior to the public offering of Shares, will include a Prospectus and additional quantitative information updated on a daily basis, including, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or mid-point of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments held by the Fund (including any short positions held in securities (“Short Positions”)) that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provisions of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit each Fund to redeem Shares in Creation Units only. Applicants state that investors may purchase Shares in Creation Units from each Fund and redeem Creation Units from each Fund. Applicants further state that because the market price of Creation Units will be disciplined by arbitrage opportunities, investors should be able to sell Shares in the secondary market at prices that do not vary materially from their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through a principal underwriter, except at a current public offering price described in the prospectus. Rule 22c–1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the Prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c–1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c–1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c–1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (c) assure an orderly distribution system of investment company shares by eliminating price competition from brokers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve the Funds as parties and cannot result in dilution of an investment in Shares, and (b) to the extent different
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants observe that settlement of redemptions of Creation Units of Global Funds is contingent not only on the settlement cycle of the U.S. securities markets but also on the delivery cycles present in foreign markets in which those Funds invest. Applicants have been advised that, under certain circumstances, the delivery cycles for transferring Portfolio Instruments to redeeming investors, coupled with local market holiday schedules, will require a delivery process of up to 14 calendar days. Applicants therefore request relief from section 22(e) in order to provide payment or satisfaction of redemptions within the maximum number of calendar days required for such payment or satisfaction in the principal local markets where transactions in the Portfolio Instruments of each Global Fund customarily clear and settle, but in all cases no later than 14 calendar days following the tender of a Creation Unit.
8. Applicants state that section 22(e) was designed to prevent unreasonable, undisclosed and unforeseen delays in the actual payment of redemption proceeds. Applicants assert that the requested relief will not lead to the problems that section 22(e) was designed to prevent. Applicants state that allowing redemption payments for Creation Units of a Fund to be made within a maximum of 14 calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants state each Global Fund's statement of additional information (“SAI”) will disclose those local holidays (over the period of at least one year following the date of the SAI), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days and the maximum number of days needed to deliver the proceeds for each affected Global Fund. Applicants are not seeking relief from section 22(e) with respect to Global Funds that do not affect redemptions in-kind.
9. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter, or any other broker or dealer from selling its shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
10. Applicants request relief to permit Investing Funds to acquire Shares in excess of the limits in section 12(d)(1)(A) of the Act and to permit the Funds, their principal underwriters and any Broker to sell Shares to Investing Funds in excess of the limits in section 12(d)(l)(B) of the Act. Applicants submit that the proposed conditions to the requested relief address the concerns underlying the limits in section 12(d)(1), which include concerns about undue influence, excessive layering of fees and overly complex structures.
11. Applicants submit that their proposed conditions address any concerns regarding the potential for undue influence. To limit the control that an Investing Fund may have over a Fund, applicants propose a condition prohibiting the adviser of an Investing Management Company (“Investing Fund Advisor”), sponsor of an Investing Trust (“Sponsor”), any person controlling, controlled by, or under common control with the Investing Fund Advisor or Sponsor, and any investment company or issuer that would be an investment company but for sections 3(c)(1) or 3(c)(7) of the Act that is advised or sponsored by the Investing Fund Advisor, the Sponsor, or any person controlling, controlled by, or under common control with the Investing Fund Advisor or Sponsor (“Investing Fund's Advisory Group”) from controlling (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The same prohibition would apply to any sub-adviser to an Investing Management Company (“Investing Fund Sub-Advisor”), any person controlling, controlled by or under common control with the Investing Fund Sub-Advisor, and any investment company or issuer that would be an investment company but for sections 3(c)(1) or 3(c)(7) of the Act (or portion of such investment company or issuer) advised or sponsored by the Investing Fund Sub-Advisor or any person controlling, controlled by or under common control with the Investing Fund Sub-Advisor (“Investing Fund's Sub-Advisory Group”).
12. Applicants propose a condition to ensure that no Investing Fund or Investing Fund Affiliate
13. Applicants propose several conditions to address the potential for layering of fees. Applicants note that the board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“independent directors or trustees”), will be required
14. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that a Fund will be prohibited from acquiring securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
15. To ensure that an Investing Fund is aware of the terms and conditions of the requested order, the Investing Funds must enter into an agreement with the respective Funds (“FOF Participation Agreement”). The FOF Participation Agreement will include an acknowledgement from the Investing Fund that it may rely on the order only to invest in a Fund and not in any other investment company.
16. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such a person (“second tier affiliate”), from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” to include any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person and any person directly or indirectly controlling, controlled by, or under common control with, the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company and provides that a control relationship will be presumed where one person owns more than 25% of another person's voting securities. Each Fund may be deemed to be controlled by an Advisor and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Advisor (an “Affiliated Fund”).
17. Applicants request an exemption under sections 6(c) and 17(b) of the Act from sections 17(a)(1) and 17(a)(2) of the Act to permit in-kind purchases and redemptions of Creation Units by persons that are affiliated persons or second tier affiliates of the Funds solely by virtue of one or more of the following: (a) Holding 5% or more, or in excess of 25% of the outstanding Shares of one or more Funds; (b) having an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25% of the Shares of one or more Affiliated Funds.
18. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making in-kind purchases or in-kind redemptions of Shares of a Fund in Creation Units. Absent the unusual circumstances discussed in the application, the Deposit Instruments and Redemption Instruments available for a Fund will be the same for all purchasers and redeemers, respectively, and will correspond
19. Applicants also submit that the sale of Shares to and redemption of Shares from an Investing Fund meets the standards for relief under sections 17(b) and 6(c) of the Act. Applicants note that any consideration paid for the purchase or redemption of Shares directly from a Fund will be based on the NAV of the Fund in accordance with policies and procedures set forth in the Fund's registration statement.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. As long as a Fund operates in reliance on the requested order, the Shares of the Fund will be listed on a Stock Exchange.
2. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that the Shares are not individually redeemable and that owners of the Shares may acquire those Shares from the Fund and tender those Shares for redemption to the Fund in Creation Units only.
3. The Web site for the Funds, which is and will be publicly accessible at no charge, will contain, on a per Share basis, for each Fund the prior Business Day's NAV and the market closing price or Bid/Ask Price, and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
4. On each Business Day, before commencement of trading in Shares on the Stock Exchange, the Fund will disclose on its Web site the identities and quantities of the Portfolio Instruments held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the Business Day.
5. The Advisor or any Sub-Advisor, directly or indirectly, will not cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Fund) to acquire any Deposit Instrument for the Fund through a transaction in which the Fund could not engage directly.
6. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of actively-managed exchange-traded funds.
1. The members of the Investing Fund's Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of the Investing Fund's Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Investing Fund's Advisory Group or the Investing Fund's Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Investing Fund's Sub-Advisory Group with respect to a Fund for which the Investing Fund Sub-Advisor or a person controlling, controlled by or under common control with the Investing Fund Sub-Advisor acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Investing Fund or Investing Fund Affiliate will cause any existing or potential investment by the Investing Fund in a Fund to influence the terms of any services or transactions between the Investing Fund or an Investing Fund Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the independent directors or trustees, will adopt procedures reasonably designed to ensure that the Investing Fund Advisor and any Investing Fund Sub-Advisor are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or an Investing Fund Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions.
4. Once an investment by an Investing Fund in the Shares of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of a Fund, including a majority of the independent directors or trustees, will determine that any consideration paid by the Fund to the Investing Fund or an Investing Fund Affiliate in connection with any services or transactions: (i) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment adviser(s).
5. The Investing Fund Advisor, or Trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Investing Fund in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Investing Fund Advisor, or Trustee or Sponsor, or an affiliated person of the Investing Fund Advisor, or Trustee or Sponsor, other than any advisory fees paid to the Investing Fund Advisor, or Trustee, or Sponsor, or its affiliated person by the Fund, in connection with the investment by the Investing Fund in the Fund. Any Investing Fund Sub-Advisor will waive fees otherwise payable to the Investing Fund Sub-Advisor, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Investing Fund Sub-Advisor, or an affiliated person of the Investing Fund Sub-Advisor, other than any advisory fees paid to the Investing Fund Sub-Advisor or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Investing Fund Sub-Advisor. In the event that the Investing Fund Sub-Advisor waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Investing Fund or Investing Fund Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an Affiliated Underwriting.
7. The Board of a Fund, including a majority of the independent directors or trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by an Investing Fund in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Investing Fund in the Fund. The Board will consider, among other things: (i) Whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders of the Fund.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by an Investing
9. Before investing in a Fund in excess of the limits in section 12(d)(1)(A), an Investing Fund will execute a FOF Participation Agreement with the Fund stating that their respective boards of directors or trustees and their investment advisers, or Trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), an Investing Fund will notify the Fund of the investment. At such time, the Investing Fund will also transmit to the Fund a list of the names of each Investing Fund Affiliate and Underwriting Affiliate. The Investing Fund will notify the Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Fund and the Investing Fund will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company, including a majority of the independent directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of an Investing Fund will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund relying on the section 12(d)(1) relief will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, June 25, 2014 at 10:00 a.m., in the Auditorium, Room L–002.
The subject matter of the Open Meeting will be:
The Commission will consider whether to adopt rules regarding the Application of “Security-based Swap Dealer” and “Major Security-based Swap Participant” Definitions to Cross-Border Security-Based Swap Activities under the Securities Exchange Act of 1934 and Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
On April 21, 2014, The NASDAQ Stock Market LLC (“Nasdaq” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade Shares of the Fund under Nasdaq Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange. The Shares will be offered by Calamos ETF Trust (“Trust”), which is registered with the Commission as an investment company.
Calamos Advisors LLC will be the investment adviser (“Adviser”) to the Fund. Foreside Fund Services, LLC will be the principal underwriter and distributor of the Fund's Shares, and State Street Bank and Trust will act as the administrator, accounting agent, custodian, and transfer agent to the Fund.
The Exchange represents that the Adviser is not a broker-dealer, but is affiliated with Calamos Financial Services LLC, which is a broker-dealer. The Exchange states that the Adviser has implemented a fire wall with respect to its broker dealer affiliate regarding access to information concerning the composition of or changes to the portfolio.
The Exchange has made the following additional representations and statements in describing the Fund and its investment strategy, including portfolio holdings and investment restrictions.
According to the Exchange, the Fund's primary investment objective is to achieve long-term capital growth. The Fund will pursue its objective by investing primarily,
When buying and selling growth-oriented securities, the Adviser will focus on the company's growth potential coupled with financial strength and stability. When selecting specific growth-oriented securities, the Adviser will combine its top-down macroeconomic views with individual security selection based on qualitative and quantitative research. The equity securities held by the Fund may include small- and mid-cap sized companies. The Fund may invest in equity securities issued by other registered investment companies (including money market funds).
The Fund may invest up to 25% of its assets in foreign securities. The Fund's investment in such stocks may be in the form of direct investments in non-U.S. securities that are listed on non-U.S. exchanges or in the form of American Depositary Receipts (“ADRs”), Global Depositary Receipts (“GDRs”), and European Depositary Receipts (“EDRs”) (collectively, “Depositary Receipts”).
The Fund will generally invest in sponsored Depositary Receipts that are listed on ISG member exchanges and that the Adviser deems as liquid at time of purchase. In certain limited circumstances, the Fund may invest in unlisted or unsponsored Depositary Receipts, Depositary Receipts listed on non-ISG member exchanges, or Depositary Receipts that the Adviser deems illiquid at the time of purchase or for which pricing information is not readily available.
While the Fund under normal circumstances will invest at least 80% of its assets in exchange-listed equity securities issued by U.S. companies, the Fund may invest the remaining assets in a variety of other securities and investments in support of its primary investment strategy, including, but not limited to: Equity securities traded over-the-counter;
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities or other illiquid assets (calculated at the time of investment). The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets. Illiquid assets include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Fund may not invest more than 25% of the value of its total assets in securities of issuers in any one industry or group of industries. This restriction does not apply to obligations issued or guaranteed by the U.S. government, its agencies or instrumentalities, or securities of other registered investment companies.
Additional information regarding the Trust, Fund, and Shares, including investment strategies and restrictions, risks, creation and redemption procedures, fees, portfolio holdings, disclosure policies, distributions and taxes, calculation of net asset value per share (“NAV”), availability of information, trading rules and halts, and surveillance procedures, among other things, can be found in the Notice, Registration Statement, and Exemptive Order, as applicable.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act;
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Commission notes that the Exchange will obtain a representation from the issuer of the Shares that the NAV will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
In support of this proposal, the Exchange has made representations, including:
(1) The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the
(2) The Shares will be subject to Rule 5735, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(3) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(4) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the Intraday Indicative Value is disseminated; (d) the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) Trading in the Shares will be subject to the existing trading surveillances, administered by both Nasdaq and FINRA,
(6) Not more than 10% of the net assets of the Fund, in the aggregate, will be invested in: (a) Unlisted or unsponsored Depositary Receipts; (b) Depositary Receipts not listed on an exchange that is not a member of ISG or a party to a comprehensive surveillance sharing agreement with the Exchange; or (c) unlisted common stocks or common stocks not listed on an exchange that is a member of the ISG or a party to a comprehensive surveillance sharing agreement with the Exchange. In addition, all futures and options held by the Fund will be listed on an exchange that is a member of the ISG or a party to a comprehensive surveillance sharing agreement with the Exchange.
(7) For initial and continued listing, the Fund must be in compliance with Rule 10A–3 under the Exchange Act.
(8) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
(9) The Fund will invest at least 80% of its assets under normal market conditions in U.S. exchange-listed equity securities. The Fund will invest primarily in companies with market capitalization of greater than $1 billion that the Adviser believes offer the best opportunities for growth. The Fund may invest up to 25% of its assets in foreign securities.
(10) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment); will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained; and will consider taking appropriate steps in order to maintain adequate liquidity
(11) The Fund does not intend to use its other investments to create a leveraged return on the Fund's portfolio.
(12) The Fund's investments will be consistent with the Fund's investment objective.
This approval order is based on all of the Exchange's representations and description of the Fund, including those set forth above and in the Notice.
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 proposes to correct rule text related to a NASDAQ Options Market (“NOM”) Rule at Chapter III, Section 9, pertaining to Exercise Limits.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend an error in rule text
Additionally, the Exchange is proposing to amend the word “exceed” in two places in the rule to “exceeded” for consistency.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that correcting the error in the rule text will make the rule clear to Participants. The insertion of the word “position” was in error as the rule relates to exercise limits. The Exchange's proposal to amend the word to “exercise” will correct this error. Also, amending the words “exceed” to “exceeded” within the rule text will conform the wording in the rule for clarity.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change seeks to correct an error in rule text and make other clarifying changes to conform rule text to avoid confusion.
No written comments were either solicited or received.
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 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. The Exchange has provided the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NASDAQ–2014–064 and should be submitted on or before July 14, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the change is to modify certain aspects of the ICE Clear Europe Delivery Procedures in connection with the launch by the ICE Endex market of three energy futures and options contracts that will be cleared by ICE Clear Europe: The German Power Base Load Futures Contract, German Power Peak Load Futures Contract, and German Power Base Load Option Contract (the “German Power Contracts”).
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
The purpose of the rule amendments is to modify certain aspects of the ICE Clear Europe Delivery Procedures in connection with the launch by the ICE Endex market of the German Power Contracts that will be cleared by ICE Clear Europe. ICE Clear Europe does not otherwise propose to amend its clearing rules or procedures in connection with the German Power Contracts.
The amendments adopt a new Part J of the Delivery Procedures applicable to the German Power Contracts in the case of physical delivery under a futures contract. The amendments provide, among other matters, specifications for delivery of power under a German Power Contract through scheduling with the relevant transmission system operator (“TSO”), including relevant definitions and a detailed delivery timetable for the contracts. The amendments also address invoicing and payment for delivery and certain limitations on liability of the Clearing House for performance or non-performance by the relevant TSO. The amendments provide for calculation by the clearing house of buyer's and seller's security to cover delivery obligations and related liabilities, costs or charges, as well as procedures to address failed deliveries. The revised procedures also outline various documentation requirements for the relevant parties.
In addition, changes are made to paragraph 5.1 of the Delivery Procedures to include the German Power Contracts as well as certain other natural gas and power futures as contracts for which parties may nominate transferors and transferees to make and take delivery. Part H of the Delivery Procedures has also been removed as the relevant contract moved from trading on the ICE Futures exchange to the ICE Endex exchange and is now covered by Part G of the Delivery Procedures.
ICE Clear Europe believes that the changes described herein are consistent with the requirements of Section 17A of the Act
Specifically, ICE Clear Europe believes that it will be able to manage the risks associated with acceptance of the German Power Contracts for clearing and physical delivery in such contracts. The German Power Contracts present a similar risk profile to other ICE Endex contracts currently cleared by ICE Clear Europe, and ICE Clear Europe believes that its existing risk management and margin framework is sufficient for purposes of risk management of the German Power Contracts and related deliveries.
Similarly, ICE Clear Europe has established appropriate standards for determining the eligibility of contracts submitted to the clearinghouse for clearing, and ICE Clear Europe believes that its existing systems are appropriately scalable to handle the German Power Contracts, which are generally similar from an operational perspective to the other ICE Endex power contracts currently cleared by ICE Clear Europe.
For the reasons noted above, ICE Clear Europe believes that the proposed rule changes are consistent with the requirements of Section 17A of the Act
ICE Clear Europe does not believe the proposed changes to the rules would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the Act. ICE Clear Europe is adopting the amendments to the Delivery Procedures in connection with the listing of new contracts for trading on the ICE Endex market. ICE Clear Europe believes that such contracts will provide additional opportunities for interested market
Written comments relating to the proposed changes to the rules have not been solicited or received. ICE Clear Europe will notify the Commission of any written comments received by ICE Clear Europe.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–ICEEU–2014–08 and should be submitted on or before July 14, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend various Exchange Rules related to fees and the cover page of the MIAX Options Fee Schedule.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rules 200(e), 208, and 1203. The
First, the Exchange proposes to amend Rule 200(e) to eliminate the description of when the Trading Permit fee is due and payable each month. Currently, Rule 200(e) states that the Trading Permit fee is due and payable in full on or before the first day on which the Trading Permit is effective. However, as the Exchange's Fee Schedule indicates, the monthly Trading Permit fees are calculated for certain Members
Second, the Exchange proposes to amend Rule 208 to provide that the monthly Exchange invoices are to be paid in full on a timely basis. Rule 208 describes the MIAX Billing System and the requirement to designate a Clearing Member for the payment of Exchange invoices. Rule 208 currently requires the designated Clearing Member to pay on a timely basis “any amount that is not disputed” by the Member rather than the full amount of the Exchange invoice. The Exchange proposes to amend Rule 208 to provide that the designated Clearing Member shall pay to the Exchange on a timely basis the full amount of each monthly Exchange invoice because, as discussed in detail below, the Exchange proposes to handle fee disputes in Proposed Rule 1203(e). In accordance with the Proposed Rule 1203(e), the Exchange expects all invoices to be paid in full including any disputed amount. If the dispute is resolved in the Member's favor, any disputed amount will be subsequently credited to the Clearing Member on behalf of that Member's account. The Exchange believes that this change will avoid confusion because it will be consistent with Proposed Rule 1203(e). In addition, the Exchange proposes replacing the term “designated” in the first sentence of Rule 208 with the term “assessed” to more accurately reflect the action being taken by the Exchange.
The Exchange proposes to create Rule 1203(e) to establish a billing practice to prevent Members from contesting their bills long after they have been sent an invoice. In accordance with Proposed Rule 1203(e), all disputes concerning fees, dues or charges assessed by the Exchange must be submitted to the Exchange in writing and must be accompanied by supporting documentation. All disputes related to fees, dues or other charges must be submitted to the Exchange no later than sixty (60) days after the date of the monthly invoice. All Exchange invoices are due in full on a timely basis and payable in accordance with Rule 208. Any disputed amount resolved in the Member's favor will be subsequently credited to the Clearing Member's account at the Clearing Corporation. The Exchange provides Members with both daily and monthly fee reports and thus believes Members should be aware of any potential billing errors within sixty calendar days of issuance of an invoice. Requiring that Members dispute an invoice within this time period will encourage them to promptly review their invoices so that any disputed charges can be addressed in a timely manner while the information and data underlying those charges (
The Exchange believes that its proposed rule change is consistent with Section 6(b)
Additionally, the Exchange believes the requirement that all invoices be paid in full and billing disputes be submitted within 60 days after the date of the invoice is reasonable because the Exchange provides ample tools to properly and swiftly monitor and account for various charges incurred in a given month. Also, the proposal is equitable because it equally applies to all Members. The Exchange's administrative costs will be lowered as a result of this policy. The proposed provision regarding fee disputes promotes the protection of investors and the public interest by providing a clear and concise mechanism in the Exchange Rules for Members to dispute fees and the Exchange to review such disputes in a timely manner. In addition, the proposed 60 day limitation is fair and equitable since it will be implemented prospectively on all Members, only applying to invoices issued after the proposed rule change becomes operative.
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 proposed rule changes to revise Exchange Rules related to fees and to add a new provision regarding fee disputes should reduce possible confusion regarding the procedures for establishing, invoicing and collecting fees, dues and other charges. Since the Exchange proposes no substantive changes regarding fees applicable to Members, the proposal does not impose any burden on competition.
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 after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 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 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 (“Exchange Act” or “Act”),
CME is filing the proposed rule change that is limited to its business as a derivatives clearing organization. More specifically, the proposed rule change would make amendments to its current procedures for facilitating physical delivery of CLS-eligible foreign currencies.
In its filing with the Commission, CME included statements concerning the purpose and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CME is registered as a DCO with the Commodity Futures Trading Commission (“CFTC”) and offers clearing services for many different futures and swaps products. The proposed rule change that is the subject of this filing is limited to CME's business as a DCO offering clearing services for CFTC-regulated products. More specifically, the change is limited to the delivery processing timelines for CME FX futures paired delivery contracts. As discussed below, the proposed change, which would facilitate continued physical delivery of CLS-eligible foreign currencies, would not materially affect the nature or level of risks presented to CME and its clearing members.
The operation and purpose of the proposed change is as follows. Currently, CME facilitates physical deliveries for CLS eligible currencies through a CME account at CLS Settlement Member banks for the purpose of efficiently matching CLS instructions. To facilitate this arrangement, CME has an agreement as a 3rd party customer with a CLS settlement member bank, henceforth termed as CLS agent bank. CME maintains accounts with two CLS agent banks for operational redundancy. The CLS agent bank plays an operational role in the CLS process. CME clearing members use their own CLS settlement banks or affiliates to physically settle currency deliveries within CLS.
Currently, in a failure of physical settlement, CME would administer the failure under current CME Rule 702. CME would be under no obligation to secure the failed currency; it may, however, facilitate the purchase of the currency for impacted clearing firm due to the fact that the currency of the impacted firm would be in the account of the CME at the CLS agent bank. Under CME rules, CME will remove any failed transactions from the CLS settlement process and resolve the failed physical settlements as set out under current CME Rule 743.B.
CME's CLS agent banks have expressed an intention to discontinue providing such services to central counterparties, such as CME, beyond September 2014. To maintain the orderly functioning of the CME FX Futures market and to avoid disruption to CME clearing members and market participants, it is required for CME to migrate away from the current operational mechanism described above to the “paired delivery” model for the September 2014 FX delivery cycle for CLS eligible currencies. Given the long history of operating under the current operational mechanism, it is important to provide the clearing members with an orderly migration path with an initial pilot physical delivery for the CAD/USD contract in the June 2014 delivery cycle.
As a result, CME is amending the process for physical delivery of CLS-eligible foreign currencies to a paired delivery process, which is similar to that currently used for CME's physically settled products in the Treasury complex. The operation of the paired delivery process is as follows. The process is an assignment-based process where clearing members with open long and short positions at the termination of trading on expiration of the contract will be matched against one another in order to facilitate the delivery. The assignment algorithm first matches delivery positions within a clearing firm. The algorithm then matches remaining positions across clearing firms. The algorithm for matching across clearing firms is designed to reduce the concentration of physical settlement. The migration to the Paired Delivery model does not impact or change the Clearing Member's ability to use their existing CLS access arrangements. The paired delivery process simplifies the physical delivery process and provides more transparency and certainty in the event of a failure in physical settlement. The physical settlement transactions continue to receive the same level of guarantee as defined under CME Rule 702.
Aside from the change described above, nothing will otherwise change from an operational or risk perspective. Consequently, the proposed change does not materially affect the nature or level of risks presented to CME and its clearing members.
After implementation of the proposed change, CME teams would continue to monitor clearing members going through delivery to assess their ability to perform for their house and client accounts; this is comparable to the process currently used for Treasury deliveries. Moreover, for FX futures, clearing members would be able to continue to use their existing CLS arrangements for currency deliveries. This is comparable to the current CME Treasury delivery process; in that process, clearing members are able to utilize their own banking relationships provided the relationship meets the standards outlined in applicable CME rules. Clearing members can also continue to use the offset benefit they currently get with the spot FX physical settlements through CLS. As noted above, the physical settlement transactions continue to receive the same level of guarantee as defined under CME Rule 702.
The removal of the CLS agent banks from the delivery process would not result in the reduction of liquidity from the delivery process. Under the agreements, CME's CLS agent banks are under no contractual obligation to provide services to secure the alternate currency.
To facilitate an orderly transition to the new process, CME will move FX futures currency pairings on a staggered basis to the new paired delivery process beginning with the CAD/USD contract for the June 2014 FX delivery cycle. Additional currencies will be moved to the new process for the September 2014 and December 2014 FX delivery cycles.
The change described in this filing is limited to CME's business as a DCO clearing products under the exclusive jurisdiction of the CFTC and does not materially impact CME's security-based swap or futures clearing business in any way. The change will become effective immediately but will be operationalized beginning June 18, 2014 and on a staggered basis over the next few currency delivery cycles. CME notes that it has also certified the proposed rule change that is the subject of this filing to its primary regulator, the CFTC, in a separate filing, CME Submission No. 14–165.
CME believes the proposed rule change is consistent with the requirements of the Exchange Act including Section 17A of the Exchange Act.
Furthermore, the proposed change is limited in its effect to products offered under CME's authority to act as a DCO. The products that are the subject of this filing are under the exclusive jurisdiction of the CFTC. As such, the proposed CME change is limited to CME's activities as a DCO clearing futures that are not security futures and swaps that are not security-based swaps and forwards that are not security forwards; CME notes that the policies of the CFTC with respect to administering the Commodity Exchange Act are comparable to a number of the policies underlying the Exchange Act, such as promoting market transparency for over-the-counter derivatives markets, promoting the prompt and accurate clearance of transactions and protecting investors and the public interest.
Because the proposed change is limited in its effect to products offered under CME's authority to act as a DCO, the proposed change is properly classified as effecting a change in an existing service of CME that:
(a) Primarily affects the clearing operations of CME with respect to products that are not securities, including futures that are not security futures, swaps that are not security-based swaps or mixed swaps; and forwards that are not security forwards; and
(b) does not significantly affect any securities clearing operations of CME or any rights or obligations of CME with respect to securities clearing or persons using such securities-clearing service.
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition. Currently, CME facilitates physical deliveries for CLS-eligible currencies through a CME account at third party banks that are members of CLS for the purpose of efficiently matching CLS instructions for all CLS-eligible currencies. These banks have expressed an intention to discontinue providing such services to central counterparties, such as CME, beyond September 2014. The amendments would facilitate physical delivery of CLS-eligible foreign currencies by amending the process for physical delivery of CLS-eligible foreign currencies to an assignment based paired delivery process where clearing members with open long and short positions at the end of trading on last trade date will be matched against one another in order to facilitate a delivery. These proposed amendments are designed to continue the ability to offer physical delivery of CLS-eligible foreign currencies and should not be seen to impact competition.
CME has not solicited, and does not intend to solicit, comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR–CME–2014–22 and should be submitted on or before July 14, 2014.
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” or “Exchange Act”),
NASDAQ proposes to add new Rule 5713 (Paired Class Shares), and to list Paired Class Shares issued by AccuShares® Commodities Trust I (the “AccuShares Trust”) on behalf of each of the following seven segregated series thereof: AccuShares S&P GSCI® Spot Fund, AccuShares S&P GSCI Agriculture and Livestock Spot Fund, AccuShares S&P GSCI Industrial Metals Spot Fund, AccuShares S&P GSCI Crude Oil Spot Fund, AccuShares S&P GSCI Brent Oil Spot Fund, AccuShares S&P GSCI Natural Gas Spot Fund, and AccuShares Spot CBOE® VIX® Fund (each an “AccuShares Fund”, and collectively the “AccuShares Funds”).
The text of the proposed rule change is available 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 purpose of this proposed rule change is to add new Rule 5713 regarding Paired Class Shares. The purpose is to also enable the Exchange to list Paired Class Shares issued by the AccuShares Trust on behalf of the AccuShares Funds pursuant to new Rule 5713 (also known as “Shares”) as follows:
Proposed Rule 5713 is based, in part, on NYSE Arca (“Arca”) Equities Rule 8.400 (the “Arca rule”).
PTS were designed to be a passive unmanaged investment vehicle with an objective to provide investors with exposure to changes in an underlying benchmark or index. PTS were to provide retail investors with a simple, liquid and cost effective means of simulating an investment in an underlying benchmark asset or index. One PTS trust issuer seeking to deliver to investors the gains from any positive movements (or losses from negative movements) in the underlying benchmark or index (“Up PTS”), would be paired with another PTS trust issuer seeking to deliver to investors the gains from any negative movements (or losses from positive movements) in the same underlying benchmark or index (“Down PTS”). Principally, the PTS trust issuers sought to track underlying benchmark or index performance through re-balancing assets between the trusts by means of a swap agreement between the trusts based on the underlying benchmark or index. The referenced value or notional amount of this swap agreement was equal to the aggregate amount of investment in the PTS trusts held by investors. Thus, any change in value attributable to a change in the underlying benchmark or index would be allocated between the PTS trust issuers by transferring assets pursuant to the swap agreement between them, and such change would directly affect the liquidation value of each PTS.
Despite the purported benefits of PTS, the PTS products in operation suffered from several fundamental design flaws that led to their ultimate demise and disappearance from the market within the span of a few years. First, the trading prices of PTS did not track the changes in the levels of the underlying benchmark or index. PTS products had no mechanism to prevent one of the PTS from trading at a premium to its underlying or net asset value (“NAV”) while the other PTS was trading at a discount to NAV. Once opposing PTS traded in offsetting premium and discount conditions, this condition became “locked.” There was no incentive for market participants to seek PTS creation or redemption arbitrage opportunities since PTS always had to be created and redeemed in equal quantities (pairs) of Up PTS and Down PTS. This premium and discount condition occurred and persisted over the life of the previously traded PTS products.
Second, PTS products had no mechanism to prevent one PTS trust from exhausting its capital—where the value of its swap exposure became zero—and thereby forcing a liquidation of both of the PTS issuer trusts. Instead, the PTS issuer trusts, by operation of their charter documents, would be forced to liquidate if their underlying benchmark or index increased by a fixed amount after their inception date. Such a liquidation occurred in the first PTS product issued within two years of its commencement of operations and PTS trading.
Third, PTS never reset their exposure to, or participation in, the reference value of their underlying benchmark or index. Consequently, the percentage changes in the price of a Down PTS did not correlate to the percentage changes in the underlying benchmark or index once the underlying benchmark or index increased or decreased over time. This problem is referred to as “leverage drift.” For instance, if a PTS product initially set its exposure to its benchmark asset at $60 and the benchmark subsequently rose to $90, an investor seeking a short exposure to the benchmark asset would buy the Down PTS at $30 per share. Thereafter, any percentage change in Down PTS price experienced by the investor would be three times the percentage change in the underlying benchmark (e.g., a $10 change in the benchmark results in about an 11% change in the benchmark and a 33% change in Down PTS price).
As noted in proposed Rule 5713, Paired Class Shares will be issued by a trust (“Trust”) on behalf of a segregated series of the Trust (“Fund”). Paired Class Shares will have values that are based on an index or other numerical variable (“Underlying Benchmark”) whose value reflects the value of assets, prices, price volatility or other economic interests (“Reference Asset”).
Each Fund will engage in (1) scheduled “regular distributions,” (2) “special distributions” that are automatically triggered upon the Underlying Benchmark exceeding a fixed rate of change since the Fund's prior regular or special distribution date or inception date in the case of the first such distribution (each a “prior distribution date”), and (3) “corrective distributions” that are automatically triggered when the trading price of a Paired Class Share deviates by a specified amount from its Class Value per Share for a specified period of time. Immediately after each regular, special and corrective distribution, the Fund's Underlying Benchmark participation or exposure will be reset and the Fund's Class Value per Share for each of its classes will be set to equal the lowest Class Value per Share of the two classes of Paired Class Shares. To the extent any class of Paired Class Shares of a Fund has a positive net income from income or gain on class assets, after deduction of class liabilities, on a regular or special distribution date as measured from the prior distribution date, such class of Paired Class Shares will receive a distribution in cash equal to such
The structure of Paired Class Shares is designed to be a passive unmanaged investment vehicle with the objective to provide investors with exposure to changes in an Underlying Benchmark. Paired Class Shares are expected to provide retail investors with a simple, liquid and cost effective means of simulating an investment in an Underlying Benchmark. Paired Class Shares provide distinct benefits that seek to remedy the perceived failings of PTS and make Paired Class Shares a unique product that would be beneficial to market participants.
First, a Trust issuing Paired Class Shares on behalf of a Fund actively monitors deviations of trading price to Class Value per Share. To the extent there is a material and persistent deviation of a Paired Class Share trading price from such Paired Class Share's Class Value per Share according to pre-set thresholds, a Trust issuing the Paired Class Shares will distribute, to holders of each class of shares, shares of the opposing class, which would leave each holder with an equal number of Up Shares and Down Shares. As each holder would own both Up Shares and Down Shares, each holder could redeem their shares through an authorized participant (“Authorized Participant”)
Second, a Trust issuing Paired Class Shares on behalf of a Fund makes regular and special distributions and resets the Fund's exposure or participation in its Underlying Benchmark to avoid depleting all of the capital of one class of shares. PTS had no similar mechanism and did in fact liquidate when its underlying benchmarks or index moved more than 80%, which occurred on numerous occasions.
Third, for regular distributions Paired Class Shares reset their Underlying Benchmark participation on regularly scheduled dates, and for special distributions reset whenever their Underlying Benchmark changes by a set percentage since the prior distribution date. Thus, on each such date, a percentage change in the Underlying Benchmark generally corresponds to a percentage change in the Class Value per Share of the shares and leverage drift is minimized. PTS never reset its index or benchmark participation and did in fact experience significant misalignment of percentage returns due to leverage drift.
The Paired Class Shares creation and redemption process is similar in nature to that of other exchange traded products. Paired Class Shares of a Fund are created and redeemed in specified aggregations of equal quantities of Up Shares and Down Shares (“Creation Units”)
The provisions of proposed new Rule 5713 are set forth below.
New Rule 5713(a) indicates that NASDAQ will consider for trading, whether by listing or pursuant to unlisted trading privileges (“UTP”), Paired Class Shares, which are defined in subsection (c), if the Paired Class Shares meet the criteria of Rule 5713. Proposed Rule 5713(b) clarifies that the rule is applicable only to Paired Class Shares. Subsection (b) states that except to the extent inconsistent with this Rule, or unless the context otherwise requires, the By-laws and all other rules and procedures of the Board of Directors shall be applicable to the trading on NASDAQ of such securities. Paired Class Shares, which are defined in proposed new subsection (c), are included within the definition of “security” or “securities” as such terms are used in the By-laws and Rules of NASDAQ.
Proposed subsection (c) specifically states that the term “Paired Class Share” means a security (1) that is issued by a Trust on behalf of a Fund as part of a pair of shares of opposing classes whose respective underlying values move in opposite directions as the value of the Fund's Underlying Benchmark (which is defined in Rule 5713(e)) varies from its starting level, where one constituent of the pair is positively linked to the Fund's Underlying Benchmark—Up Shares—and the other constituent is inversely linked to the Fund's Underlying Benchmark—Down Shares, (2) that is issued in exchange for cash, (3) the issuance proceeds of which are invested and reinvested in highly rated short-term financial instruments that mature within 90 calendar days and that serve certain functions,
Proposed subsection (d) provides that a Fund may engage in scheduled regular distributions, special distributions that are automatically triggered upon the Underlying Benchmark exceeding a fixed rate of change since the prior distribution, and corrective distributions that are automatically triggered when the trading price of a Paired Class Share deviates by a specified amount from its underlying value for a specified period of time.
Following on subsection (a) of the proposed rule, proposed subsection (e) states that NASDAQ may trade, either by listing or pursuant to unlisted trading privileges (“UTP”),
Proposed subsection (f) deals with initial and continued listing. Initial listing is specifically discussed in subsection (f)(i). There are three initial listing requirements. (A) NASDAQ will establish a minimum number of Paired Class Shares for each Fund required to be outstanding at the time of commencement of trading on NASDAQ. (B) NASDAQ will obtain a representation from the Trust on behalf of each Fund that the underlying value per share of each Up Share and Down Share will be calculated daily and that these underlying values and information about the assets of the Fund will be made available to all market participants at the same time.
Continued listing is discussed in proposed subsection (f)(ii), which gives the circumstances under which NASDAQ will consider the suspension of trading in or removal from listing of a Fund's Paired Class Shares. These circumstances include the following alternatives: (A) If, following the initial twelve-month period beginning upon the commencement of trading of the Paired Class Shares: (i) There are fewer than 50 record and/or beneficial holders of the Fund's Up Shares or Down Shares for 30 or more consecutive trading days; (ii) the Fund has fewer than 50,000 Up Shares or 50,000 Down Shares issued and outstanding; or (iii) the combined market value of all shares of a Fund issued and outstanding is less than $1,000,000; (B) if the intraday level of the Underlying Benchmark, or a substitute or replacement Underlying Benchmark based on the same Reference Asset, is no longer calculated or available
Proposed subsection (f)(ii) provides also that upon termination of a Fund, Paired Class Shares issued in connection with such Fund must be removed from listing. A Fund may terminate in accordance with the provisions of the Fund prospectus, which may provide for termination if the underlying value of the Paired Class Shares falls below a specified amount.
Firewall procedures are proposed in respect of the listing of Shares. Paragraph (f)(i)(C) of proposed Rule 5713 provides that if the Underlying
Term, trustee, and voting rights are discussed in subsection (f). Regarding term, proposed subsection (f)(iii) states that the stated term of a Fund shall be as stated in the Fund prospectus. However, a Fund may be terminated under such earlier circumstances as may be specified in the Fund prospectus. Regarding trustees, proposed subsection (f)(iv) states that the trustee of a Trust must be a trust company or banking institution having substantial capital and surplus and the experience and facilities for handling corporate trust business. In cases where, for any reason, an individual has been appointed as trustee, a qualified trust company or banking institution must be appointed co-trustee.
Proposed subsection (g) sets forth a limitation of liability that states that neither NASDAQ nor any agent of NASDAQ shall have any liability for damages, claims, losses or expenses caused by any errors, omissions, or delays in calculating or disseminating any applicable Underlying Benchmark value; the underlying value of the Fund and its Paired Class Shares; distribution values or any other information relating to the purchase, redemption, or trading of the Paired Class Shares, resulting from any negligent act or omission by NASDAQ, or any agent of NASDAQ, or any act, condition or cause beyond the reasonable control of NASDAQ or its agent, including, but not limited to, an act of God; fire; flood; extraordinary weather conditions; war; insurrection; riot; strike; accident; action of government; communications or power failure; equipment or software malfunction; or any error, omission or delay in the reports of transactions in the applicable positions or interests.
Regarding an Exchange member acting as a Market Maker
The Exchange also proposes six Commentaries. Commentary .01 states that members provide all purchasers of newly issued Paired Class Shares a prospectus for the Fund.
The Shares will be offered by the AccuShares
Under the Trust Agreement, the Sponsor has exclusive management and control of all aspects of the business of each AccuShares Fund. Specifically, the Sponsor selects the AccuShares Funds' service providers, negotiates various fees and agreements and performs such other services as the Sponsor believes that the AccuShares Trust may require from time to time.
Each class of an AccuShares Fund pays the Sponsor a management fee (the “Management Fee”), monthly in arrears, in an amount equal to a percentage of its average daily Class Value at the rate set forth in the applicable AccuShares Fund prospectus. No other fee is paid by the AccuShares Funds. The Management Fee is paid in consideration of the Sponsor's management and administrative services and the other services provided to the AccuShares Funds for which the Sponsor pays directly.
The Trustee acts as the sole trustee of the AccuShares Trust under the Trust Agreement for the purpose of creating the AccuShares Trust as a Delaware statutory trust in accordance with the Delaware Statutory Trust Act. The Trustee has only nominal duties and liabilities under the Trust Agreement to the AccuShares Trust and the AccuShares Funds. The Trustee will have no duty or liability to supervise or monitor the performance of the Sponsor, nor will the Trustee have any liability for the acts or omissions of the Sponsor.
Wilmington Trust, N.A. also serves as the investment advisor (the “Investment Advisor”) for each AccuShares Fund pursuant to the Non-Custody Investment Advisory Agreement by and among the AccuShares Trust, the Sponsor and the Investment Advisor (the “Investment Advisory Agreement”). The Investment Advisor, which is chosen by the Sponsor, is responsible for investing each AccuShares Fund's available cash in bills, bonds and notes issued and guaranteed by the United States Treasury (“United States Treasury Securities”) with remaining maturities of 90 days or less (“Eligible Treasuries”) and over-night repurchase agreements collateralized by United States Treasury Securities (“Eligible Repos,” together with cash and Eligible Treasuries, “Eligible Assets”). As discussed, if the Underlying Benchmark is maintained by the Investment Advisor, it will erect a “firewall” around the personnel who have access to information concerning changes and adjustments to the Underlying Benchmark.
State Street Bank and Trust Company, a Massachusetts trust company (“State Street”), serves as the custodian (the “Custodian”) for each AccuShares Fund pursuant to appointment by the AccuShares Trust and the terms of a domestic custodian agreement. The Custodian will hold each AccuShares Fund's securities and cash, and will perform each AccuShares Fund's Class Value and Class Value per Share calculations.
State Street serves as the administrator (the “Administrator”) for each AccuShares Fund pursuant to appointment by the Sponsor and the terms of an administration agreement. The Administrator, among other things, performs or supervises the performance of services necessary for the operation and administration of the AccuShares Funds (other than making investment decisions or providing services provided by other service providers), including accounting and other fund administrative services.
State Street serves as the transfer agent (the “Transfer Agent”) for each AccuShares Fund pursuant to appointment by the Sponsor and the terms of a transfer agency and services agreement to provide certain services to the AccuShares Funds. The Transfer Agent, among other things, provides transfer agent services with respect to the creation and redemption of Creation Units. The Transfer Agent will receive from Authorized Participants creation and redemption orders and deliver acceptances and rejections of such orders to Authorized Participants as well as coordinate the transmission of such orders and instructions among the Sponsor and the Authorized Participants.
The Underlying Benchmark of each AccuShares Fund, other than the AccuShares Spot CBOE VIX Fund (the “VIX Fund”), is constructed, calculated and published by S&P® Dow Jones Indices LLC (the “Index Provider”).
The Sponsor receives the Management Fee and otherwise bears all the routine ordinary expenses of each AccuShares Fund, including the fees and reimbursable expenses of the Trustee, the Investment Advisor, the Custodian, the Administrator, the Transfer Agent and the Index Provider. The AccuShares Funds bear all their tax liabilities, which are accrued daily, and their extraordinary, non-recurring expenses that are not assumed by the Sponsor under the Trust Agreement.
Each Authorized Participant must be a registered broker-dealer or other securities market participant such as a bank or other financial institution which is not required to register as a broker-dealer to engage in securities transactions, and a direct participant in The Depository Trust Company. In addition, each Authorized Participant must be a party to an Authorized Participant Agreement with the Sponsor setting forth the procedures for the creation and redemption of Creation Units in an AccuShares Fund. Only Authorized Participants may place orders to create or redeem one or more Creation Units.
The offer and sale of Paired Class Shares of each AccuShares Fund will be registered with the SEC by means of the AccuShares Trust's registration statement on Form S–1 (the “Registration Statement”) under the Securities Act of 1933 (the “Securities Act”). The Registration Statement was filed on March 18, 2014 and will be effective as of the date of such offer and sale.
Each S&P GSCI Commodity Index is constructed, calculated and published by the Index Provider. The S&P GSCI Spot index (the “S&P GSCI”), which serves as the Underlying Benchmark for the AccuShares S&P GSCI Spot Fund, is an index on a production-weighted basket of currently 24 principal physical commodities that satisfy criteria established by the Index Provider. The commodities included in the S&P GSCI are weighted, on a production basis, to reflect the relative significance (in the view of the Index Provider) of those commodities to the world economy. The referenced commodities within the S&P GSCI Agricultural and Livestock Spot index (the “S&P GSCI–AL”) and the S&P GSCI Industrial Metals Spot index (the “S&P GSCI–IN”) each receive weightings that differ from the weightings they receive in the broader S&P GSCI.
The S&P GSCI Crude Oil Spot index (the “S&P GSCI–CL”), the S&P GSCI Brent Crude Oil Spot index (the “S&P GSCI–BR”) and the S&P GSCI Natural Gas Spot index (the “S&P GSCI–NG”) are single commodity sub-indices of the S&P GSCI.
Each S&P GSCI Commodity Index reflects only the daily settlement prices (“Daily Contract Reference Prices”) of commodities futures contracts that are the components of such index (“Designated Contracts”) on each business day. Each S&P GSCI Commodity Index is based on the daily settlement prices of first nearby contract, except during the five day “Roll Period” where the “Roll Contract Expirations” shift to the next nearby contract and where the weighting of the first nearby contract is decreased in favor of the next expiry contract 20 percent per day during the Roll Period. Immediately following the Roll Period, the next expiry contract is used for the index until the next following Roll Period. When shifting to a next nearby contract, contract quantities remain consistent and relative values between the nearby and next nearby contracts may vary.
The daily value of the S&P GSCI Commodity Indices, therefore, is calculated solely based on the commodity production weightings assigned by the Index Provider of each Designated Contract, and of the Daily Contract Reference Prices of the nearby contract expiration of each Designated Contract, and do not reflect any roll yield.
The quantity of each of the contracts included in the S&P GSCI Commodity Indices is determined on the basis of a five year average, referred to as the “world production average,” of the production quantity of the underlying commodity as published by the United Nations Statistical Yearbook, the Industrial Commodity Statistics Yearbook and other official sources. However, if a commodity is primarily a regional commodity, based on its production, use, pricing, transportation or other factors, the Index Provider may calculate the weight of that commodity based on regional, rather than world, production data. At present, natural gas is the only commodity the weights of which are calculated on the basis of regional production data, with the relevant region defined as North America.
For a complete and current description the eligibility criteria, weighting and calculation methodologies the Index Provider utilizes in selecting commodities and Designated Contracts and their weights for an S&P GSCI Commodity Index, see the S&P GSCI Handbook, which is available at:
The Underlying Benchmark of the VIX Fund is the VIX. The VIX is constructed by the CBOE and calculated and published by the Index Provider. The VIX seeks to serve as a measure of the expected volatility of the S&P 500® total return stock index (the “S&P 500 Index”). It is an up-to-the-minute market estimate of expected volatility that is calculated by using real-time S&P 500 Index option (ticker SPX) bid/ask quotes. The SPX is the Reference Asset of the VIX. Each business day, the VIX uses SPX options with at least eight days left to expiration, and then weights them to yield a constant, 30-day measure of the expected volatility of the S&P 500 Index.
The VIX is based on real-time option prices, which reflect investors' consensus view of future expected stock market volatility. During periods of financial stress, which are often accompanied by steep market declines, SPX options prices—and the VIX—tend to rise. As expectations of large market moves subside, SPX option prices tend to decline, which in turn causes the VIX to decline.
The VIX is quoted in percentage points and translates, roughly, to the expected movement in the S&P 500 Index over the next 30-day period, which is then annualized. The VIX is based on the spot variation of its Reference Asset and as such does not incorporate the effects of closing out an expiring contract and establishing a position in the next available contact. Consequently, the VIX does not reflect any roll yield in option contract turnover and is properly viewed as a spot measure of 30-day expiry expected S&P 500 Index volatility measured through SPX price movements. For additional information regarding the VIX, see the CBOE's Web site at
The AccuShares Trust will issue Shares on behalf of an AccuShares Fund in offsetting pairs, where one constituent of the pair, the Up Shares, is positively linked to the AccuShares Fund's Underlying Benchmark and the other constituent, the Down Shares, is negatively linked to the AccuShares Fund's Underlying Benchmark. Therefore, the AccuShares Trust will only issue, distribute, maintain and redeem equal quantities of Up Shares and Down Shares on behalf of an AccuShares Fund at all times. The AccuShares Trust will create and redeem Paired Class Shares on behalf of an AccuShares Fund in Creation Units for cash only.
Cash proceeds from the creation of Paired Class Shares by an AccuShares Fund may only be held by an
Each AccuShares Fund will maintain its Eligible Assets in a separate custody account maintained by the AccuShares Fund's Custodian that will be segregated from the assets of any other series of the AccuShares Trust, the Custodian or any other customer of the Custodian. Any date on which there is cash on deposit in an AccuShares Fund's custody account that is not required to make payments or to make distributions to shareholders all such cash will be either held as cash or invested by the Investment Advisor, acting in accordance with the Investment Advisory Agreement and on behalf of the AccuShares Fund, in cash bank deposits, Eligible Treasuries or Eligible Repos.
Each AccuShares Fund will invest its cash in Eligible Treasuries or Eligible Repos in order to generate income to pay its fees, expenses and taxes and to generate income to shareholders from cash on deposit in the AccuShares Fund that is not immediately needed for other purposes pending a later net income distribution. Each AccuShares Fund will hold a portion of its assets in Eligible Repos, because these agreements mature and convert to cash within one business day, which will make it possible for the AccuShares Fund to have sufficient cash available on each business day to be able to effect any redemptions of its Creation Units.
The Trust Agreement will limit, and the Investment Advisory Agreement will direct the Investment Advisor to limit, each AccuShares Fund's holdings of Eligible Repos.
Daily, except on a distribution date where such proceeds are needed to effect redemptions or net income distributions or to distribute cash for regular and special distributions, the Investment Advisor, on behalf of the AccuShares Fund, will reinvest the proceeds received upon the maturity of the AccuShares Fund's Eligible Treasuries and Eligible Repos in Eligible Assets. The Investment Advisor will also invest in Eligible Assets all of an AccuShares Fund's cash funds delivered to it in connection with each creation of the AccuShares Fund's Creation Units. On the liquidation of an AccuShares Fund, all of the proceeds of the Eligible Treasuries and Eligible Repos held by the AccuShares Fund will be used to make final cash liquidating payments, less the fees, expenses and taxes of the AccuShares Fund not assumed by the Sponsor, to the AccuShares Fund's shareholders. Upon any redemption of an AccuShares Fund's Creation Units by an Authorized Participant, the cash of the AccuShares Fund will be used to pay the proceeds of such redemption to the redeeming Authorized Participant.
The Investment Advisor will select Eligible Treasuries and Eligible Repos for acquisition by an AccuShares Fund in accordance with the acquisition guidelines that are contained in the Investment Advisory Agreement and the applicable AccuShares Fund prospectus.
The Custodian will daily determine the Class Value of each class of an AccuShares Fund, which is based on the value of the AccuShares Fund's Eligible Assets attributable to such class, (a) plus any accrued income or gains or losses on such assets attributable to such class (“Investment Income”), (b) less all fees, expenses and taxes attributable to such class not otherwise assumed by the Sponsor, where such income and gains after deduction of such fees, expenses and taxes is referred to as the class “Net Investment Income.” Such accrued income, gains, losses, fees, expenses and taxes will be allocated to each Share class on a daily basis, where such allocation is equal to the amount of such accrued income, gains, losses, fees, expenses and taxes multiplied by a fraction the numerator of which is the closing Class Value per Share of the referenced class and the denominator of which is the sum of the closing Class Values per Share of both classes of the AccuShares Fund.
The Class Value per Share of each AccuShares Fund's Up Shares will have a fixed one-to-one positive linear relationship with such AccuShares Fund's Underlying Benchmark (the “Up Share Index Factor”) and the Class Value per Share of each AccuShares Fund's Down Shares will have a fixed one-to-one inverse linear relationship with such AccuShares Fund's Underlying Benchmark (the “Down Share Index Factor” and together with the Up Share Index Factor, the “Share Index Factors”). The Down Share Index Factor will equal negative one times the Up Share Index Factor. At the inception of operations of each AccuShares Fund, the Sponsor will establish such AccuShares Fund's Share Index Factors. After any regular or special distribution by an AccuShares Fund, the AccuShares Fund will reset its Share Index Factors. This resetting of the Share Index Factors causes Class Values per Share to be equal following each such distribution, where the Class Values per Share will be equal to the lowest Class Value per Share of either class calculated in determining the distribution.
During any single distribution measurement period that starts with the prior distribution date (the “Measuring Period”) and in order to create a balanced market for the Up Shares and Down Shares of the VIX Fund, the Class Value per Share of each Up Share of the VIX Fund will be reduced and the Class Value per Share of each Down Share of the VIX Fund will be increased by an additional daily amount (the “Daily Amount”). In each Measuring Period where the VIX has a level that is below a threshold specified in the VIX Fund's prospectus on the prior distribution date, the Daily Amount will be a fixed percentage per day
The AccuShares Funds' assets are not managed to track the performance of their respective Underlying Benchmarks, and the Shares of the AccuShares Funds will not rely on the investment acumen of a manager or the precision of the investment tools used by a manager for performance or for tracking the targeted Underlying Benchmark. Rather, the return on an AccuShares Fund's Shares with respect to its Underlying Benchmark will be algorithmic and delivered to AccuShares Fund investors experiencing an increase in their Shares' Class Value per Share by regular and special distributions and to AccuShares Fund investors experiencing a decrease in their Shares' Class Value per Share by the dilution of their Shares' Class Value per Share due to regular and special distributions received by the class of Shares opposing their Shares. The Class Values and Class Values per Share for each AccuShares Fund will be calculated as set forth to the applicable AccuShares Fund prospectus.
The Class Value of each class of an AccuShares Fund is the portion of that fund's net asset value, or liquidation value, that is attributable to that class. Class Values and Class Values per Share of each AccuShares Fund will be calculated by the fund's custodian at the end of each Regular Market Session.
In determining liquidation value, each AccuShares Fund will value all assets consistent with generally accepted industry practice for valuation of cash and cash equivalent securities. Cash balances and cash equivalent securities will be valued at purchase price plus accrued interest and longer dated U.S. Treasury securities will be valued at market prices.
The Class Value of a specific class of an AccuShares Fund is the fund's liquidation value, adjusted for the total Net Investment Income, multiplied by a fraction, the numerator of which is the closing Class Value per Share of the referenced class and the denominator of which is the sum of the closing Class Values per Share of both classes of the AccuShares Fund. The Class Value per Share of all outstanding Shares of a class of an AccuShares Fund is its Class Value divided by the number of outstanding Shares of such class.
The Class Value per Share of each AccuShares Fund's Up Shares will be increased or decreased, as applicable, by an amount equal to the change in the fund's Underlying Benchmark since the prior distribution date multiplied by the fund's Up Share Index Factor. The Class Value per Share of each AccuShares Fund's Down Shares will be increased or decreased, as applicable, by an amount equal to the change in the fund's Underlying Benchmark since the prior distribution date multiplied by the fund's Down Share Index Factor.
Similar to other exchange traded products, the AccuShares Funds will rely on the Share creation and redemption process to reduce any premium or discount that may occur in an AccuShares Fund's Share trading prices on the Exchange relative to that Share's Class Value per Share. Shares in each AccuShares Fund may be created or redeemed only by certain Authorized Participants who have entered into Authorized Participant Agreements with the AccuShares Trust and the Sponsor. The creation/redemption process is important for each AccuShares Fund in providing Authorized Participants with an arbitrage mechanism through which they may keep Share trading prices in line with each Share's Class Value per Share.
As an AccuShares Fund's Shares trade intraday on the Exchange, their market prices will fluctuate due to supply and demand. The following scenarios generally describe the conditions surrounding a creation/redemption:
• If the aggregate market prices of the two classes of Shares of an AccuShares Fund exceed their aggregate Class Values per Share,
• If the aggregate Class Values per Share of the two classes of Shares of an AccuShares Fund exceed their aggregate market prices,
• If the aggregate Class Values per Share of the two classes of Shares of an AccuShares Fund are equal to their aggregate market prices, but the market price of one of the classes of Shares exceeds its Class Value per Share and the Class Value per Share of the opposing class of Shares exceeds its market price, the redemption and creation mechanism may not create an arbitrage opportunity to eliminate this disparity. An AccuShares Fund's corrective distribution mechanism is designed to resolve this discrepancy. As discussed above, a corrective distribution will leave each shareholder of an AccuShares Fund with an equal number of Up Shares and Down Shares. As each shareholder would own both Up Shares and Down Shares, each holder could redeem their Shares through an Authorized Participant for cash at their respective Class Values per Share, which would eliminate the premium or discount. Even if a corrective distribution is not triggered, the existence of an AccuShares Fund's corrective distribution feature is
The processes examined in the first two scenarios above are referred to as the “arbitrage mechanism.” The arbitrage mechanism helps to minimize the difference between the trading price of a Share of an AccuShares Fund and its Class Value per Share. Over time, these buying and selling pressures should balance out, and a Share's market trading price is expected to remain at a level that is at or close to its Class Value per Share. The arbitrage mechanism provided by the creation and redemption process is designed, and required, in order to maintain the relationship between the market trading price of Shares and their Class Values per Share between distribution dates.
Each AccuShares Fund is expected to engage in four types of distributions as of certain distribution dates. The first type of distribution, regular distributions, will occur at regular intervals for each AccuShares Fund. Regular distributions will generally occur as long as there has been a change in the level of the Underlying Benchmark (and, in the case of the VIX Fund, the Daily Amount) as of the distribution date since the prior distribution date. Secondly, each AccuShares Fund expects to make net income distributions on each regular or special distribution date to the shareholders of any class of such AccuShares Fund whose class Net Investment Income is positive as of such distribution date.
The other two types of distributions are not expected to occur regularly and are mechanisms intended to protect the interests of investors by providing them with the expected value of their Shares upon specified events. Thus, the third type, special distributions, occurs where the change in the Underlying Benchmark exceeds a specified percentage value since the prior distribution date but before the next regular distribution. The fourth type, corrective distributions, occur only if the trading price of a class' Shares on the Exchange deviates for a specified length of time over a specified threshold amount from the Class Value per Share of such class.
Each AccuShares Fund will engage in regular distributions on either a monthly or quarterly basis as set forth in the applicable AccuShares Fund prospectus.
An investor receiving distributions in pairs of Shares can (i) sell the Shares received for cash and maintain the proceeds in cash, (ii) sell only the opposing class of Shares received and maintain proceeds in cash or (iii) sell only the opposing class of Shares received and reinvest the proceeds in the desired class of Shares to gain more economic exposure to the Underlying Benchmark.
Special distributions are a measure designed to protect the AccuShares Funds and the investors in the AccuShares Funds during periods when the AccuShares Fund's Underlying Benchmark experiences unexpected degrees of volatility. The AccuShares Funds will effect a special distribution and a resetting of the Share Index Factors between regular distribution dates where the change in the Underlying Benchmark exceeds a specified percentage value since the prior distribution date, as set forth in the applicable AccuShares Fund prospectus.
When the Class Values per Share of the Up Shares and the Down Shares of an AccuShares Fund differ at the close of a Measuring Period (after adjusting for any net income distribution for such Shares), the Share class with the higher Class Value per Share is expected to receive a regular or special distribution on that distribution date.
The value of a distribution relating to each of an AccuShares Fund's Up Shares (where such Shares are valued at their respective Class Values per Share) entitled to a distribution on a distribution date will be equal to the positive amount, if any, of the closing Class Value per Share of the AccuShares Fund's Up Shares (after adjusting for any net income distribution) less the closing Class Value per Share of the AccuShares Fund's Down Shares (after adjusting for any net income distribution).
The value of a distribution relating to each of an AccuShares Fund's Down Shares (where such Shares are valued at their respective Class Values per Share) entitled to a distribution on a distribution date will be equal to the positive amount, if any, of the closing Class Value per Share of the AccuShares Fund's Down Shares (after adjusting for any net income distribution) less the closing Class Value per Share of the AccuShares Fund's Up Shares (after adjusting for any net income distribution).
Regular and special distributions will ordinarily be made in the form of cash during the first six months of trading in an AccuShares Fund's Shares. Thereafter, each AccuShares Fund will pay all or any part of any regular or special distribution in Paired Class Shares instead of cash where further cash distributions would adversely affect the liquidity of the market for the AccuShares Fund's Shares
Corrective distributions will occur for the AccuShares Funds after the trading price of an AccuShares Fund's Shares deviates materially and persistently from Class Value per Share according to fixed thresholds as set forth in the applicable AccuShares Fund prospectus. Corrective distributions are
Whenever an AccuShares Fund engages in a regular or special distribution, such AccuShares Fund will determine whether any of its classes has a positive Net Investment Income. Shareholders of any class that has a positive Net Investment Income will receive a net income distribution. Net income distributions may occur for any class regardless of whether such class receives a regular or special distribution on that date.
Reverse share splits will be declared to maintain a positive Class Value per Share for either the Up Shares or the Down Shares of an AccuShares Fund should the Class Value per Share of either class approach zero. Reverse share splits are expected to occur in the context of special distributions and are expected to be triggered after Class Value per Share declines below a specified dollar threshold as set forth in the applicable AccuShares Fund prospectus.
Each AccuShares Fund engaging in a regular distribution, a special distribution, a corrective distribution or a net income distribution will provide at least three business days' advance notice (or longer advance notice as may be required by the Exchange)
With respect to regular distributions, the information provided will consist of the schedule of distributions and associated distribution dates, and a notification, as of the record date for such regular distribution, on the Sponsor's Web site (
With respect to special distributions, corrective distributions and share splits, the information provided will include the relevant ex-, record and payment dates for each such event and relevant data concerning each such event. These events will also be reported in press releases, on the Sponsor's Web site (
In addition, notice of net income distributions for each class of an AccuShares Fund, if any, will also be included in the notifications of regular, special and corrective distributions.
Information about the AccuShares Trust, the AccuShares Funds and Shares will appear in the AccuShares Fund prospectuses as well as in periodic and current reports by the AccuShares Trust under the Exchange Act. Information about the AccuShares Trust, the AccuShares Funds and the Shares will also be available from the Web site
For each AccuShares Fund, an estimated value, defined in proposed Rule 5713(f)(ii)(D) as the “Intraday Indicative Value,” will be disseminated. The Intraday Indicative Value, made available by a major market vendor, will be based upon the previous day's Class Value per Share, as adjusted throughout the day based on changes in the value of the AccuShares Fund's Underlying Benchmark or the value of an equivalent front futures contract price, and will be updated and widely disseminated and broadly displayed on at least a 15-second delayed basis during the Regular Market Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of an AccuShares Fund. NASDAQ will halt or pause trading in an AccuShares Fund's Shares under the conditions specified in NASDAQ Rules 4120 and 4121, including the trading pauses under NASDAQ Rules 4120(a)(11) and (12). Trading may be halted for reasons that, in the view of the Exchange, make trading in the AccuShares Fund's Shares inadvisable.
If the intraday level of an AccuShares Fund's Underlying Benchmark or the Intraday Indicative Value is not being disseminated as required, the Exchange may halt trading during the day in which the disruption occurs; if the interruption persists past the day in which it occurred, the Exchange will halt trading no later than the beginning of the trading day following the interruption. The Exchange will obtain a representation from the AccuShares Trust on behalf of each AccuShares Fund that the Class Value per Share of each of its Up Shares and Down Shares will be calculated daily and that these Class Values per Share and information about the assets of the AccuShares Fund will be made available to all market participants at the same time.
The Sponsor's Web site (
Investors will also be able to obtain each AccuShares Fund's annual and quarterly reports (together, “Reports”). Each AccuShares Fund's Reports will be available free upon request from the AccuShares Trust, and those documents may be viewed on-screen or downloaded from the Commission's Web site at
Additional information regarding the AccuShares Funds and the Shares, including risks, creation and redemption procedures, fees, distributions and taxes, is included in the Registration Statement.
The Exchange deems the Shares to be equity securities, which include, among other things, exchange traded funds and exchange traded notes, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of such securities. The Exchange will allow trading Paired Class Shares during all trading sessions.
The Exchange represents that trading in Paired Class Shares will be subject to the existing trading surveillances, administered by both the Exchange and 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.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Paired Class Shares and in the securities in which the AccuShares Fund will invest with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”) or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading Paired Class Shares. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of Paired Class Shares; (2) Rule 2111A, which imposes suitability obligations on Exchange members with respect to recommending transactions in Paired Class Shares to customers; (3)
The Exchange believes that its proposal to establish a rule to enable listing Paired Class Shares is, as noted, substantively similar to the Arca rule to establish listing PTS. In approving Arca's PTS Rule 8.400, the Commission stated that “. . .the Exchange's proposed rules and procedures for the listing and trading of the Paired Trust Shares are consistent with the Act. The Paired Trust Shares will trade as equity securities subject to the Exchange's existing rules governing the trading of equity securities.”
The Exchange believes that this proposal will allow investors to execute trading and hedging decisions using a new product, Paired Class Shares, which offers the ability to invest in securities tied to increases or decreases in the prices of securities, commodities or other financial assets on an unleveraged basis. Paired Class Shares accomplishes this result without the need to replicate the return profile using other financial assets and thus reduces or avoids typical portfolio costs and risks, such as portfolio transaction costs, country risk, counterparty risk and liquidity risk associated with the underlying investments. As such, the Exchange believes that Paired Class Shares will benefit market participants and the market in general.
Moreover, we believe that the structure of Paired Class Shares in terms of paired Up Shares and Down Shares have characteristics that would provide unique benefits and opportunities to market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that, to be listed, each Fund
The proposed rule change is also designed to promote just and equitable principles of trade and to protect investors and the public interest through its distribution provision. Once listed each Fund may engage in (1) scheduled regular distributions, (2) special distributions that are automatically triggered upon the Underlying Benchmark exceeding a fixed rate of change since the Fund's prior distribution date, and (3) corrective distributions that are automatically triggered when the trading price of a Paired Class Share deviates by a specified amount from its Class Value per Share for a specified period of time. These distributions provide investors with the expected value of their Paired Class Shares periodically as well as upon the occurrence of specified events, and are also expected to limit the frequency and magnitude of oscillations between fund trading price premiums and discounts to Class Value per Share.
Moreover, a large amount of information will be publicly available regarding the Funds and their Paired Class Shares, thereby promoting market transparency. The Intraday Indicative Value of each listed Up Share and Down Share of a Fund, and the intraday level of each Fund's Underlying Benchmark, will be widely disseminated by one or more major market data vendors, such as Reuters or Bloomberg, and broadly displayed on at least a 15-second delayed basis during the Regular Market Session. Information regarding market price and trading volume of each Fund's Up Shares and Down Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will also be available via NASDAQ proprietary quote and trade services, as well as in accordance with any UTP plans for a Fund's paired Class Shares, if applicable.
Trading in a Fund's Paired Class Shares will be halted or paused under the conditions specified in NASDAQ Rules 4120 and 4121, including the trading pauses under NASDAQ Rules 4120(a)(11) and (12). Trading may be halted for reasons that, in the view of the Exchange, make trading in the Paired Class Shares inadvisable, and trading in Paired Class Shares will be subject to proposed Rule 5713(f)(ii), which sets forth additional circumstances under which trading in Paired Class Shares may be halted. In addition, as noted above, investors will have ready access to information
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. In addition, as noted above, investors will have ready access to information regarding each Fund's Intraday Indicative Values and Underlying Benchmark, as well as quotation and last sale information for each Fund's Paired Class Shares.
For the above reasons, NASDAQ believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes that no burden exists in that no other Exchange has a listing rule regarding this product. Paired Class Shares represent a significant improvement over a product that is no longer traded, PTS, because of the periodic distributions, periodic index resets, and active market monitoring of Paired Class Shares. These unique factors allow Paired Class Shares to provide investors with: (i) A reduction of persistent or cumulative deviations in share trading price to actual index performance; (ii) improved correlations over the life of the securities between percentage changes in the index and the percentage changes in the share price of the shares; and (iii) significant reduction of the need to liquidate the issuer in response to large movements in its related index, which represent significant benefits to traders and investors.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 correct rule text related to an options rule at Chapter III, Section 9, pertaining to Exercise Limits.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the
The purpose of the proposed rule change is to amend an error in rule text in Chapter III, Section 9 (Exercise Limits) that was inadvertently inserted into a recent rule change.
Additionally, the Exchange is proposing to amend the word “exceed” in two places in the rule to “exceeded” for consistency.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that correcting the error in the rule text will make the rule clear to Participants. The insertion of the word “position” was in error as the rule relates to exercise limits. The Exchange's proposal to amend the word to “exercise” will correct this error. Also, amending the words “exceed” to “exceeded” within the rule text will conform the wording in the rule for clarity.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change seeks to correct an error in rule text and make other clarifying changes to conform rule text to avoid confusion.
No written comments were either solicited or received.
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 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. The Exchange has provided the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–BX–2014–033 and should be submitted on or before July 14, 2014.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 515.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 515(c)(2) in order to provide that the liquidity refresh pause will be terminated early and normal trading will resume if during a liquidity refresh pause, the ABBO on the same side of the market as the initiating order crosses the original NBBO price on the opposite side of the market. The proposed change is designed to codify existing functionality during the liquidity refresh pause. The proposed change will allow the liquidity refresh pause to terminate and normal trading resume without delay, thus freeing up the initiating order and any same side joiners received during the timer, when the market has changed in a manner that renders the initiating order and same side joiners no longer marketable. Once normal trading resumes, the initiating order and any same side joiners held within the liquidity refresh pause would be free to compete for executions with the new revised same side ABBO at additional price points which may lead to additional execution opportunities.
The following examples describe how a new revised same side ABBO that crosses the original NBBO on the opposite side of the market will terminate the Liquidity Refresh Pause early.
• Order 1: Buy limit of 1.13 for 20 contacts with a price protection instruction of 3 MPVs
• NBBO at time of arrival = 1.00 (50) × 1.10 (10)
• Order 1 is price protected at 1.13 (which is 1.10 + 3 MPV = 1.13)
○ Order 1 trades 10 contracts with PLMM @1.10
○ Liquidity Refresh Pause is triggered because the MBO of 1.10 was alone at NBBO and PLMM's 1.10 offer was exhausted
MBBO 1.10 (10) × 1.12 (10)
Liquidity Refresh message is broadcasted on the Exchange's data feeds: Buy 10 contracts, exhausted MBO of 1.10
○ ABB updates to 1.12 for 10 contracts; ABBO = 1.12 (10) × 1.14 (10)
○ Liquidity Refresh Pause is terminated early due to the ABB improving the original NBO of 1.10.
○ Order 1 trades 10 contracts with LMM1 @1.12. Order 1 has been fully executed.
○ New MBBO: 1.00 (40) × 1.15 (10). New NBBO: 1.12(10) × 1.15(10)
• Order 1: Buy limit of 1.13 for 20 contacts with a price protection instruction of 3 MPVs
• NBBO at time of arrival = 1.00 (50) × 1.10 (10)
• Order 1 is price protected at 1.13 (which is 1.10 + 3 MPV = 1.13)
○ Order 1 trades 10 contracts with PLMM @1.10
○ Liquidity Refresh Pause is triggered because the MBO of 1.10 was alone at NBBO and PLMM's 1.10 offer was exhausted
MBBO 1.10 (10) × 1.12 (20)
Liquidity Refresh message is broadcasted on the Exchange's data feeds: Buy 10 contracts, exhausted MBO of 1.10
○ ABB updates to 1.12 for 10 contracts; ABBO = 1.12 (10) × 1.14 (10)
○ Liquidity Refresh Pause is terminated early due to the ABB improving the original NBO of 1.10.
○ Order 1 trades 10 contracts with LMM1 @1.12. Order 1 has been fully executed.
○ LMM1's remaining 10 contracts would be managed and reposted as firm at 1.13. New MBBO: 1.00 (40) × 1.13 (10). New NBBO: 1.12(10) × 1.13(10)
As mentioned above, the proposed change is designed to codify existing functionality that terminates the liquidity refresh pause early if during a liquidity refresh pause, the ABBO on
MIAX believes that its proposed rule change is consistent with Section 6(b) of the Act
The proposal to end the liquidity refresh pause due to the ABBO on the same side of the market as the initiating order crosses the original NBBO price on the opposite side of the market is designed to facilitate transactions, to remove impediments to and perfect the mechanism of a free and open market by freeing up interest in the liquidity refresh pause when conditions have changed that renders the initiating order and same side joiners no longer marketable to the benefit of market participants. The proposal also promotes the protection of investors and the public interest by codifying existing functionality in a manner that should reduce confusion for Exchange members regarding the termination of a liquidity refresh pause.
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. Specifically, the Exchange believes the proposed changes will not impose any burden on intra-market competition because it applies to all MIAX participants equally. In addition, the Exchange does not believe the proposal will impose any burden on inter-market competition as the proposal is intended to protect investors by providing further transparency regarding the Exchange's price protection functionality.
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day Notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before July 23, 2014.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205–7030
The purpose of this data collection is to monitor loan payment information on SBA loan portfolios arising from the Immediate Disaster Assistance Program. This exercise will involve monthly updates on the payments received by lenders from small businesses that have received funding through this guaranty program. The Agency looks to better manage the program's effectiveness by having lenders provide this form of periodic reporting to SBA.
(1)
Small Business Administration.
30-Day Notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before July 23, 2014.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205–7030
Small Business Administration requires this information by lenders and small business applicants for a loan under the Immediate Disaster Assistance Program (IDAP.) The information will be used among other things, to determine applicant's eligibility, perform lender oversight and portfolio risk management, evaluate program's effectiveness in reaching population, and general loan data reporting.
(1)
U.S. Small Business Administration
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Nebraska (FEMA–4179–DR), dated 06/17/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 06/17/2014, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14030B and for economic injury is 14031B.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Florida (FEMA–4177–DR), dated 05/14/2014.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Florida, dated 05/14/2014, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes a revision of an OMB-approved information collection.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than August 22, 2014. Individuals can obtain copies of the collection instrument by writing to the above email address.
Electronic Records Express (ERE) is a web-based SSA program that allows medical and educational providers to electronically submit disability claimant data to SSA. Both medical providers and other third parties with connections to disability applicants or recipients (e.g., teachers and school administrators for child disability applicants) use this system once they complete the registration process. SSA employees and State agency employees request the medical and educational records collected through the ERE Web site. The agency uses the information collected through ERE to make a determination on an Application for Benefits. We also use the ERE Web site to order and receive consultative examinations when we are unable to collect enough medical records to determine disability findings. The respondents are medical providers who evaluate or treat disability claimants or recipients, and other third parties with connections to disability applicants or recipients (ex: Teachers and school administrators for child disability applicants), who voluntarily choose to use ERE for submitting information.
Type of Request: Revision of an OMB-approved information collection.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Keith D. Miller, Office of Overseas Schools, U.S. Department of State, Room H–328, 2401 C Street NW., Washington, DC 20522–0132, who may be reached on 202–261–8200 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit object, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Shawki Ali Ahmed al-Badani, also known as Shawqi Ali Ahmad al-Ba'dani, also known as Shawqi al-Ba'dani, also known as Shawqi Ali Ahmad al-Baadani, also known as Shawqi Ali Ahmad Muhammad al-Badani, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under Subpart B (formerly Subpart Q) of the Department of Transportation's Procedural Regulations (See 14 CFR 301.201 et seq.). The due date for Answers, Conforming Applications, or Motions to Modify Scope are set forth below for each application. Following the Answer period DOT may process the application by expedited procedures. Such procedures may consist of the adoption of a show-cause order, a tentative order, or in appropriate cases a final order without further proceedings.
Federal Highway Administration (FHWA), New York State Department of Transportation (NYSDOT), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to the New York Gateway Connections Improvement Project. Those actions grant approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before November 20, 2014. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Jonathan D. McDade, Division Administrator, Federal Highway Administration, Leo W. O'Brien Federal Building, Albany, New York 12207, Telephone (518) 431–4127.
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing approvals for the following highway project in the State of New York: Gateway Connections Improvement Project, City of Buffalo, New York. The New York Gateway Connections Project will consist of the addition of a new ramp that provides direct access from the US Peace Bridge Plaza to northbound I–190, removal of Baird Drive from Front Park, and replacement of the Porter Avenue Bridge over I–190.
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Federal Highway Administration (FHWA) Final Environmental Impact Statement (FEIS) for the project, approved by FHWA in the Record of Decision (ROD) issued on June 3, 2014, and in other documents in the FHWA administrative record. The FEIS, ROD, and other documents in the FHWA administrative record file are available by contacting the FHWA, or NYSDOT, at the addresses provided above. The FEIS and ROD can be viewed and downloaded from the project Web site at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321–4351]; Federal-Aid Highway Act [23 U.S.C. 109].
2. Air: Clean Air Act, 42 U.S.C. 7401–7671(q).
3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]; Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. 319.
4. Wildlife: Endangered Species Act [16 U.S.C. 1531–1544 and Section 1536], Fish and Wildlife Coordination Act [16 U.S.C. 661–667(d)], Migratory Bird Treaty Act [16 U.S.C. 703–712].
5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.]; Archeological Resources Protection Act of 1977 [16 U.S.C. 470(aa)–11]; Archeological and Historic Preservation Act [16 U.S.C. 469–469(c)]; Native American Grave Protection and Repatriation Act (NAGPRA) [25 U.S.C. 3001–3013].
6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)–2000(d)(1)]; American Indian Religious Freedom Act [42 U.S.C. 1996].
7. Wetlands and Water Resources: Coastal Zone Management Act, 16 U.S.C. 1451–1465; Land and Water Conservation Fund (LWCF), 16 U.S.C. 4601–4604; Safe Drinking Water Act (SDWA), 42 U.S.C. 300(f)–300(j)(6); 33 U.S.C. 401–406; Flood Disaster Protection Act, 42 U.S.C. 4001–4128.
8. Hazardous Materials: Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601–9675; Superfund Amendments and Reauthorization Act of 1986 (SARA); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901–6992(k).
9. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514
23 U.S.C. 139(l)(1).
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated March 25, 2014, the Gulf & Ohio Railways, Inc. (G&O), on behalf of one of its companies, the Knoxville & Holston River Railroad (KXHR), petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 215, Railroad Freight Car Safety Standards. FRA assigned the petition Docket Number FRA–2014–0030.
G&O requests a waiver on behalf of KXHR from the stenciling requirement specified in 49 CFR 215.303,
KXHR operates over 22 miles of track in and around Knoxville, TN. Established in 1998, it normally handles in excess of 7,000 carloads annually. It also operates the Three Rivers Rambler excursion train, owned by a sister company, which travels to and from Knoxville over a 5.5-mile portion of the railroad along the Tennessee River. The excursion train, powered mostly by a steam locomotive, uses three passenger cars built about 80 years ago. Between the two companies, they own nine freight cars that are more than 50 years of age. These cars are being preserved because of their educational value, usefulness in creating an antique freight train that can be operated for photographs, and as a backdrop for the antique passenger train. The maximum operating speed of these cars will be 10 mph. These cars have been examined and are safe to operate under the conditions in this petition. In the case of cars that are not yet operable, they will be examined and not operated unless they are found to be safe under the conditions requested in this petition. These nine cars will not be interchanged with other railroads.
G&O states that these cars are a collection of antique equipment that is not intended for operation except (1) for repositioning when needed and (2) for photo freight trains, not to exceed three times per year, 20 miles per trip, except that Car KXHR 9 will operate as an open air passenger car on the Three Rivers Rambler excursion train at 10 mph.
In addition, G&O has requested a Special Approval for these nine cars to continue in service in accordance with 49 CFR 205.203(c).
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by August 7, 2014 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
In accordance with Part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by a document dated May 5, 2014, Rouge Valley Terminal Railroad Corporation (RVTC) petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 223, Safety Glazing Standards—Locomotives, Passenger Cars, and Cabooses. FRA assigned the petition Docket Number FRA–2014–0044.
RVTC petitioned for a waiver of compliance for one locomotive from the requirements of 49 CFR 223.11,
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by August 7, 2014 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See
Federal Transit Administration (FTA), DOT.
Notice of reopening of early scoping and comment periods and announcement of additional scoping meetings.
The Federal Transit Administration (FTA) and the Metropolitan Atlanta Rapid Transit Authority (MARTA) issue this early scoping notice to advise other agencies and the public that they intend to conduct another round of early scoping. The additional early scoping period will continue the examination of potential alternatives for providing high-capacity transit in the Georgia (GA) 400 corridor in north Fulton County, GA from Dunwoody to Alpharetta. The alternatives would improve transit linkages and coverage to communities within this corridor and would enhance mobility and accessibility to and within the corridor by providing a more robust transit network that offers an alternative to automobile travel. This notice invites the public and agency officials to provide input to the ongoing alternatives analysis and system planning effort by commenting on the project's purpose and need, the project study area, the alternatives being considered, the transportation problems that are being addressed by the alternatives analysis study, public participation and outreach methods, the relevant transportation and community impacts and benefits being considered, known environmental issues raised by public and agency coordination to date, and the projected capital and operating costs of this project.
The early scoping process is intended to support the alternatives analysis and a future National Environmental Policy Act (NEPA) scoping process and will help streamline the future development of an environmental impact statement (EIS), if warranted. In addition, the early scoping process supports FTA planning requirements associated with the New Starts (“Section 5309”) funding program for certain kinds of major capital investments. Although recent legislation has led to changes in the New Starts process, MARTA will comply with all relevant FTA requirements relating to planning and project development to help analyze and screen alternatives in preparation for the NEPA process.
The planned public meetings are described immediately below. A more detailed discussion of the project and this early scoping process is included in sections that follow.
Three early scoping meetings where the public and interested agencies can learn more about and comment on the scope of the alternatives analysis will be held on the following dates at the locations indicated under
• Tuesday, July 8, 2014.
• Thursday, July 10, 2014.
• Thursday, July 17, 2014.
At the early scoping meetings, MARTA will provide information on the alternatives analysis progress along with opportunities for written comments. Written or electronic scoping comments are requested by August 8, 2014, and can be sent or emailed to the MARTA project manager at the address below. Comments may also be offered at the early scoping meetings and will be accepted after the deadline as practicable.
Written or electronic comments should be sent to Mark Eatman, P.E., Project Manager, MARTA, 2424 Piedmont Road NE., Atlanta GA 30324–3330 or by email to
Early Scoping meetings will be held at the following locations:
• Tuesday, July 8, 2014, 6:30 to 8:00 p.m., at Johns Creek Environmental Campus, 8100 Holcomb Bridge Road, Roswell, GA 30022.
• Thursday, July 10, 2014, 6:30 to 8:00 p.m., at Georgia State University Alpharetta Center, 3775 Brookside Pkwy, Alpharetta, GA 30022.
• Thursday, July 17, 2014, 6:30 p.m.–8:00 p.m., Hampton Inn Atlanta—Perimeter Center, 769 Hammond Dr. NE., Atlanta, GA 30328.
The meeting locations are accessible to persons with disabilities. If translation, signing services, or other
Mr. Keith Melton, Community Planner, FTA Region IV, 230 Peachtree Street NW., Suite 800, Atlanta, GA 30303 or email:
Early scoping is an optional early step in the NEPA process that precedes NEPA scoping, which normally begins when the FTA and the grant applicant publish a notice of intent to prepare an EIS. FTA encourages the use of early scoping for major planning activities and studies that may receive other FTA funding as a way to start the NEPA process during earlier project planning phases. Early scoping is intended to generate public and agency review and comments on the scope of a planning effort within a defined transportation corridor, which helps the agency to determine which particular alignment variations, should receive more focused study and development to streamline the NEPA process. Early scoping can serve not only to streamline the NEPA process, but also to firmly link transportation planning and NEPA, making sure that the public and interested agencies are given the opportunity to review and provide comments on the results of planning activities and studies that can then be used to inform the NEPA process.
Early scoping for the GA 400 Transit Initiative was initially announced in 78 FR 53187, August 28, 2013, and is being conducted in support of NEPA requirements and in accordance with the Council on Environmental Quality's (CEQ) and FTA's regulations and guidance for implementing NEPA (40 CFR 1501.2 through 1501.8 and through 23 CFR 771.111), which encourage federal agencies to initiate NEPA early in their planning processes. Early scoping allows the scoping process to begin as soon as there is enough information to describe the proposal so that the public and relevant agencies can participate effectively. This is particularly useful in situations when a proposed action involves a broadly defined corridor with an array of transit investment alternatives. This notice reopens early scoping and invites public and agency involvement with the ongoing supplementary planning activities and studies for the GA 400 Transit Initiative, including review of the (a) purpose and need, (b) the proposed alternatives, and (c) the potential environmental, transportation, and community impacts and benefits to consider during the NEPA process.
The GA 400 Corridor Alternatives Analysis (AA) was initiated by MARTA in late 2011 to identify potential and feasible transit modal alternatives in the GA 400 corridor to address travel demands. The GA 400 corridor is the transportation spine of northern Fulton County, one of the fastest growing sub-regions in the metro-Atlanta region. The GA 400 Corridor AA addressed the travel market in a study area generally extending north along GA 400 from I–285 in Dunwoody to the Fulton/Forsyth County line north of Alpharetta, a distance of approximately 15 miles. The corridor is home to many employment centers, including Perimeter Center in the southern portion of the corridor, one of the largest employment centers for the region. Transit service to and within the study area is provided primarily by MARTA heavy rail and bus. The Georgia Regional Transportation Authority (GRTA) also operates two bus routes that connect the southern portion of the GA 400 corridor with express bus service at peak hours to/from the north and southeast outside the GA 400 corridor. Rail service extends from Downtown Atlanta to the major retail and employment centers, including the Medical Center and Perimeter Center in Dunwoody and Sandy Springs in the southern portion of the corridor. MARTA bus service primarily functions as feeder service to MARTA heavy rail stations from areas to the north, including Roswell, Alpharetta and Milton. A number of the bus routes and the MARTA heavy rail stations serve park-and-ride facilities.
MARTA invites comments on the following preliminary statement of the project's purpose and need.
The purpose of the project is to provide reliable, convenient, efficient, and sustainable transit service in the GA 400 corridor by:
• Providing high capacity transit (bus and/or rail) through the GA 400 corridor study area;
• Improving transit linkages and coverage to communities within the study area; and
• Enhancing mobility and accessibility to and within the study area by providing a more robust transit network that offers an alternative to automobile travel.
The need for this project arises from the following:
• Travel demand—Increased travel demand and traffic congestion;
• Transit mobility—There is inadequate transit connectivity within the northern Fulton study area and between the study area and DeKalb, Gwinnett, and Cobb Counties and central Atlanta. In addition, east-west transit connectivity is inadequate. The limited routes across the Chattahoochee River reflect the inadequate transit connectivity;
• Transit travel times—Transit travel times are not competitive with auto travel times due to the lack of express service; this is true for north-south trips within the study area and for trips with origins and destinations outside the study area. Transit and auto travel times cannot be compared for east-west trips as there is no east-west transit service;
• Economic development—Traffic congestion caused by insufficient transportation system capacity affects both personal travel and goods movement, which constrains economic development opportunities; and
• Air quality—The continued growth of vehicular travel will negatively affect air quality in the study area and the region.
MARTA has been exploring alternative transit mode, alignment, and design options for high capacity transit service in the GA 400 corridor using a three-step evaluation process. The three-step evaluation process includes a Fatal Flaw Analysis, Screen 1 and Screen 2 and is generally characterized by the application of an increasingly detailed and comprehensive set of performance measures to a decreasing number of alternatives. Each step in the evaluation process focuses the analysis on progressively fewer alternatives with higher levels of scrutiny. In addition, the Build Alternatives are compared not only to each other but also to the No-Build Alternative, which provides the benchmark for establishing the travel benefits, environmental impacts of the alternatives and the cost-effectiveness of the alternatives. The GA 400 Corridor Transit Initiative is currently in Screen 2. After consideration of the findings of the first and second steps in the evaluation process, MARTA has identified an alignment that would provide approximately 11.9 miles of transit service along the GA 400 corridor within existing right-of-way from the existing North Springs MARTA station
At the end of the alternatives analysis process, FTA and MARTA anticipate identifying a preferred mode and corridor for further evaluation during the NEPA process. The classification of the NEPA documentation will be determined by the FTA at the end of the alternatives analysis. If the preferred mode and alignment involve the potential for significant environmental impacts an EIS may be required. If an EIS is required, a Notice of Intent to Prepare an EIS will be published in the
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and Request for Comment.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35), the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The agencies, under the auspices of the Federal Financial Institutions Examination Council (FFIEC), have approved the publication for public comment of proposed revisions to the risk-weighted assets portion of Schedule RC–R, Regulatory Capital, and to line items related to securities lent and borrowed in Schedule RC–L, Derivatives and Off-Balance Sheet Items, in the Consolidated Reports of Condition and Income (Call Report or FFIEC 031 and FFIEC 041). The proposed revisions to the Call Report are consistent with the revised regulatory capital rules published by the agencies (revised regulatory capital rules).
For all institutions required to file the Call Report, the proposed revised risk-weighted assets portion of Schedule RC–R and the proposed changes to Schedule RC–L would take effect as of the March 31, 2015, report date.
At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the FFIEC and the agencies should modify the proposed reporting revisions prior to giving final approval. The agencies will then submit the proposed reporting revisions to OMB for review and approval.
Comments must be submitted on or before August 22, 2014.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number(s), will be shared among the agencies.
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You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649–6700. Upon arrival, visitors will be required to present valid government-issued photo identification and to submit to security screening in order to inspect and photocopy comments.
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All public comments are available from the Board's Web site at
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503; by fax to (202) 395–6974; or by email to
For further information about the proposed revisions to the Call Report discussed in this notice, please contact any of the agency clearance officers whose names appear below. In addition, copies of the proposed revised FFIEC 031 and FFIEC 041 forms and instructions can be obtained at the FFIEC's Web site (
The agencies are proposing to revise and extend for three years the Call Report, which is currently an approved collection of information for each agency.
OCC:
Board:
FDIC:
The estimated time per response for the quarterly filings of the Call Report is an average that varies by agency because of differences in the composition of the institutions under each agency's supervision (e.g., size distribution of institutions, types of activities in which they are engaged, and existence of foreign offices). The average reporting burden for the filing of the Call Report as it is proposed to be revised is estimated to range from 20 to 775 hours per quarter, depending on an individual institution's circumstances.
The Call Report information collections are mandatory for the following institutions: 12 U.S.C. 161 (national banks), 12 U.S.C. 324 (state member banks), 12 U.S.C. 1817 (insured state nonmember banks), and 12 U.S.C. 1464 (savings associations) (collectively, Call Report filers). At present, except for selected data items, the Call Report information collections are not given confidential treatment.
Institutions submit Call Report data to the agencies each quarter for the agencies' use in monitoring the condition, performance, and risk profile of individual institutions and the industry as a whole. Call Report data provide the most current statistical data available for evaluating institutions' corporate applications, identifying areas of focus for on-site and off-site examinations, and monetary and other public policy purposes. The agencies use Call Report data in evaluating interstate merger and acquisition applications to determine, as required by law, whether the resulting institution would control more than ten percent of the total amount of deposits of insured depository institutions in the United States. Call Report data also are used to calculate institutions' deposit insurance and Financing Corporation assessments and national banks' and federal savings associations' semiannual assessment fees.
Call Report Schedule RC–R collects regulatory data on tier 1, tier 2, and total capital and regulatory capital ratios (regulatory capital components and ratios portion) and on risk-weighted assets (risk-weighted assets portion). On January 14, 2014, the agencies published a final PRA notice in the
An advanced approaches institution as defined in section 100 of the agencies' revised regulatory capital rules (i) has consolidated total assets (excluding assets held by an insurance underwriting subsidiary) on its most recent year-end regulatory report equal to $250 billion or more; (ii) has consolidated total on-balance sheet foreign exposure on its most recent year-end regulatory report equal to $10 billion or more (excluding exposures held by an insurance underwriting subsidiary), as calculated in accordance with the FFIEC 009 Country Exposure Report; (iii) is a subsidiary of a depository institution that uses the advanced approaches pursuant to subpart E of 12 CFR part 3 (OCC), 12 CFR part 217 (Board), or 12 CFR part 325 (FDIC) to calculate its total risk-weighted assets; (iv) is a subsidiary of a bank holding company or savings and loan holding company that uses the advanced approaches pursuant to 12 CFR part 217 to calculate its total risk-weighted assets; or (v) elects to use the advanced approaches to calculate its total risk-weighted assets. See 78 FR 62204 (OCC and Board); 78 FR 55523 (FDIC).
The agencies are proposing changes to Schedule RC–R in two stages to allow interested parties to better understand the proposed revisions and focus their comments on areas of particular interest. Therefore, for report dates in 2014, all Call Report filers would continue to report risk-weighted assets in the portion of Schedule RC–R that currently contains existing data items 34 through 62 and Memoranda items 1 and 2, but this portion of the schedule would be designated Part II.
Call Report Schedule RC–L collects regulatory data on derivatives and off-balance sheet items. The agencies are proposing at this time to revise the reporting requirements for off-balance sheet exposures related to securities lent and borrowed, consistent with the revised regulatory capital rules. Compared to the current schedule, the proposed changes to Schedule RC–L would require all institutions to report the amount of securities borrowed. At present, institutions include the amount of securities borrowed in the total amount of all other off-balance sheet liabilities if the amount of securities borrowed is more than 10 percent of total bank equity capital and disclose the amount of securities borrowed if that amount is more than 25 percent of total bank equity capital. In addition, the proposed changes to Schedule RC–L would place the line item for securities borrowed immediately after the line item for securities lent.
All Call Report filers, including all advanced approaches institutions that file Call Reports, would continue to report their risk-weighted assets by applying the general risk-based capital rules
All Call Report filers would continue to report securities lent (item 6) and securities borrowed (items 9 and 9.a, as appropriate) in current Schedule RC–L for report dates in 2014. These institutions would begin to use the updated line items for securities lent and borrowed in Schedule RC–L effective for the March 31, 2015, report date.
For report dates beginning in 2014, an advanced approaches banking organization that is a Call Report filer and has completed a satisfactory parallel run would report its advanced approaches risk-weighted assets and risk-based capital ratios on proposed revised FFIEC 101 Schedule A (line items 60 through 63) and on proposed revised Call Report Schedule RC–R, Part I.B (line item 40.b and line items 41 through 43, Column B). Part I.B would be designated Part I of Schedule RC–R for report dates beginning in 2015.
For the March 31, 2015, report date, institutions may provide reasonable estimates for any new or revised Call Report items initially required to be reported as of that date for which the requested information is not readily available. The specific wording of the captions for the new or revised Call Report data items discussed in this proposal and the numbering of these data items should be regarded as preliminary. Similarly, the text of the draft instructions for proposed revised Schedule RC–R, Part II, and the proposed revisions to Schedule RC–L for securities lent and borrowed should be regarded as preliminary.
This section describes the proposed changes to Call Report Schedule RC–R
Proposed revised Part II of Schedule RC–R would be divided into the following sections: (A) On-balance sheet asset categories; (B) derivatives and off-balance sheet items; (C) totals; and (D) memoranda items for derivatives. A brief description of each of these sections and the corresponding line items is provided below.
Proposed line items 1 through 8 reflect on-balance sheet asset categories (excluding those assets within each category that meet the definition of a securitization exposure), similar to the asset categories included in the current version of Schedule RC–R, but the proposed items would capture greater reporting detail. The number of risk-weight categories to which the individual assets in each asset category would be allocated would be expanded consistent with the revised regulatory capital rules. On-balance sheet assets and off-balance sheet items that meet the definition of a securitization exposure would be reported in items 9 and10, respectively. In addition to the proposed instructions for revised Schedule RC–R, Part II, institutions also should refer to the revised regulatory capital rules to determine the appropriate risk-weight category allocations for each on-balance sheet asset category and the appropriate risk-weight calculations for securitization exposures.
Subject to the separate reporting of securitization exposures from the related on-balance sheet asset category, total on-balance sheet assets are equal to the sum of: (Item 1) cash and balances due from depository institutions; securities, excluding securitization exposures, which are composed of (item 2.a) held-to-maturity (HTM) securities and (item 2.b) available-for-sale (AFS) securities; (item 3) federal funds sold and securities purchased under agreements to resell; loans and leases held for sale, which are composed of (item 4.a) residential mortgage exposures, (item 4.b) high volatility commercial real estate (HVCRE) exposures, (item 4.c) exposures past due 90 days or more or on nonaccrual, and (item 4.d) all other exposures; loans and leases, net of unearned income, which are composed of (item 5.a) residential mortgage exposures, (item 5.b) HVCRE exposures, (item 5.c) exposures past due 90 days or more or on nonaccrual, and (item 5.d) all other exposures; less (item 6) allowance for loan and lease losses; (item 7) trading assets, excluding securitization exposures that receive standardized charges; (item 8) all other assets; and on-balance sheet securitization exposures, which are composed of (item 9.a) HTM securities, (item 9.b) AFS securities, (item 9.c) trading assets that receive standardized charges, and (item 9.d) all other on-balance sheet securitization exposures. As mentioned above, off-balance-sheet securitization exposures would be reported in item 10.
Line item 11 would collect total information on the institution's on-balance sheet asset categories and on-balance sheet securitization exposures, including for each risk-weight category, calculated as the sum of items 1 through 9.
Proposed line items 12 through 21 pertain to the reporting of derivatives and off-balance sheet items, excluding those that meet the definition of a securitization exposure (which are reported in item 10 as discussed above). Consistent with the revised regulatory capital rules, new line items would be added and the number of risk-weight categories to which the credit equivalent amounts of derivatives and off-balance sheet items would be allocated would be expanded. In addition to the proposed instructions for revised Schedule RC–R, Part II, institutions also should refer to the revised regulatory capital rules to determine the appropriate risk-weight category allocations for each derivative and off-balance item sheet category.
Derivatives and off-balance sheet items consist of: (Item 12) financial standby letters of credit; (item 13) performance standby letters of credit and transaction-related contingent items; (item 14) commercial and similar letters of credit with an original maturity of one year or less; (item 15) retained recourse on small business obligations sold with recourse; (item 16) repo-style transactions (excluding reverse repos), which includes securities borrowed, securities lent, and securities sold under agreements to repurchase; (item 17) all other off-balance sheet liabilities; unused commitments, which is composed of (item 18.a) the unused portion of commitments with an original maturity of one year or less, excluding asset-backed commercial paper (ABCP) conduits, (item 18.b) the unused portion of eligible ABCP liquidity facilities with an original maturity of one year or less, and (item 18.c) the unused portion of commitments and commercial and similar letters of credit that have an original maturity exceeding one year; (item 19) unconditionally cancelable commitments; (item 20) the credit equivalent amount of over-the-counter derivative contracts; and (item 21) the credit equivalent amount of centrally cleared derivative contracts.
Proposed items 22 through 30 apply the risk-weight factors to the exposure amounts reported for assets, derivatives, and off-balance sheet items in items 11 through 21 and calculate an institution's total risk-weighted assets.
Line item 24 would collect information on an institution's risk-weighted assets by risk-weight category. For each column, this is equal to the product of the amount reported (item 22) for total assets, derivatives, and off-balance sheet items by risk-weight category, multiplied by (item 23) the applicable risk-weight factor.
Line item 25 would collect an institution's measurement of risk-weighted assets for purposes of calculating the institution's 1.25 percent of risk-weighted assets limit on the allowance for loan and lease losses.
Line item 26 would collect an institution's standardized market risk-weighted assets, if applicable.
Line item 30 would collect an institution's total risk-weighted assets, calculated as (item 27) risk-weighted assets before deductions for excess allowance of loan and lease losses and allocated transfer risk reserve less (item 28) excess allowance for loan and lease losses, and less (item 29) allocated transfer risk reserve.
In proposed memorandum items 1 through 3, an institution would report the current credit exposure and notional principal amounts of its derivative contracts. Consistent with the revised regulatory capital rules, existing memorandum item 2 would be revised.
Memorandum item 1 would continue to collect the institution's total current credit exposure amount for all interest rate, foreign exchange rate, gold, credit, commodity, equity, and other derivative contracts covered by the revised regulatory capital rules after considering applicable legally enforceable bilateral netting agreements.
Memorandum items 2 and 3, respectively, would collect, by remaining maturity and type of contract, the notional principal amounts of the institution's over-the-counter and centrally cleared derivative contracts subject to the revised regulatory capital rules. Data on interest rate, foreign exchange rate and gold, credit (investment grade reference assets), credit (non-investment grade reference assets), equity, precious metals (except gold), and other derivative contracts would be reported separately. At present, institutions report these notional principal amounts and remaining maturities, but without distinguishing between over-the-counter and centrally cleared derivatives. In addition, foreign exchange rate contracts and gold contracts would be combined in Memorandum items 2 and 3, whereas each of these two types of contracts currently is reported separately in Memorandum item 2.
This section describes the proposed changes to Call Report Schedule RC–L to implement the reporting of securities lent and borrowed consistent with the revised regulatory capital rules. Effective for the March 31, 2015, report date, the existing line item for securities lent (current item 6 of Schedule RC–L) would be renumbered and the existing reporting requirements for securities borrowed (current items 9 and 9.a) would be revised as described below. Call Report filers should refer to the revised regulatory capital rules and the proposed reporting instructions for revised Schedule RC–L for further information.
In current Schedule RC–L, securities lent and borrowed are reported separately, not in sequential order. Furthermore, all institutions must report securities lent, but securities borrowed are reported and disclosed only if the amount exceeds specified thresholds. Securities borrowed are included in item 9, “All other off-balance sheet liabilities,” if the amount of securities borrowed is more than 10 percent of Schedule RC, item 27.a, “Total bank equity capital.” If the amount of securities borrowed is greater than 25 percent of total bank equity capital, then that amount is reported separately in item 9.a, “Securities borrowed.”
Proposed line item 6.a would be used for reporting securities lent and item 6.b would be used for reporting securities borrowed. The total amount of securities borrowed would be reported in line item 6.b regardless of amount,
The proposed regulatory reporting changes to the risk-weighted assets portion of Call Report Schedule RC–R and to the reporting of securities lent and borrowed in Schedule RC–L would apply to all Call Report filers for report dates beginning in 2015. Each reporting entity would continue to submit the applicable quarterly reports on the same due dates as are currently in effect for the reporting entity. In addition, the agencies expect all reporting entities to meet the existing reporting standards for accuracy and other requirements as currently mandated by their primary federal supervisor.
See section I.B of this notice for a detailed discussion of the timing for the implementation of the proposed reporting changes.
Public comment is requested on all aspects of this joint notice. In particular, do institutions expect that making any specific line items on the proposed revised risk-weighted assets portion of Call Report Schedule RC–R public would cause them competitive or other harm? If so, identify the specific line items and describe in detail the nature of the harm.
Specifically, comments are invited on:
(a) Whether the collections of information that are the subject of this notice are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies and will be summarized or included in the agencies' requests for OMB approval. All comments will become a matter of public record.
Internal Revenue Service (IRS), Treasury
Notice and request for comments
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8849, Claim for Refund of Excise Taxes.
Written comments should be received on or before August 22, 2014 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing a price of $99.95 for the 50th Anniversary Kennedy Half-Dollar Silver Coin Collection and a price of $9.95 for the 50th Anniversary Kennedy Half-Dollar Uncirculated Coin Set.
Marc Landry, Acting Associate Director for Sales and Marketing; United States Mint; 801 9th Street NW., Washington, DC 20220; or call 202–354–7500.
31 U.S.C. 5111, 5112 & 9701.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed Incidental Harassment Authorization; request for comments.
NMFS has received an application from the United States (U.S.) Geological Survey (USGS), Lamont-Doherty Earth Observatory of Columbia University (L–DEO), and National Science Foundation (NSF) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to conducting a marine geophysical (seismic) survey in the Atlantic Ocean off the Eastern Seaboard, August to September 2014 and April to August 2015. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to USGS to incidentally harass, by Level B harassment only, 34 species of marine mammals during the specified activity.
Comments and information must be received no later than July 23, 2014.
Comments on the application should be addressed to Jolie Harrison, Supervisor, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
An electronic copy of the application may be obtained by writing to the address specified above, telephoning the contact listed below (see
The USGS, which is funding the proposed seismic survey, included with its application a “Draft Environmental Assessment for Seismic Reflection Scientific Research Surveys during 2014 and 2015 in Support of Mapping the U.S. Atlantic Seaboard Extended Continental Margin and Investigating Tsunami Hazards,” prepared by RPS Evan-Hamilton, Inc. in association with YOLO Environmental, Inc., GeoSpatial Strategy Group, and Ecology and Environment, Inc., on behalf of USGS, which is also available at the same internet address. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.
Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301–427–8401.
Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for the incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On March 27, 2014, NMFS received an application from the USGS, L–DEO, and NSF (hereafter referred to as USGS) requesting that NMFS issue an IHA for the take, by Level B harassment only, of small numbers of marine mammals incidental to conducting a marine seismic survey within the Exclusive Economic Zone (EEZ) and on the high seas (i.e., International Waters) to map the U.S. Atlantic Eastern Seaboard Extended Continental Shelf (ECS) region and investigate tsunami hazards during August to September 2014 and April to August 2015. USGS plan to use one source vessel, the R/V
Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun array are likely to result in the take of marine mammals. Take, by Level B harassment only, of individuals of 34 species of marine mammals is anticipated to result
USGS plans to conduct a marine seismic survey within the EEZ and on the high seas to map the U.S. Atlantic Eastern Seaboard ECS region and investigate tsunami hazards during August to September 2014 and April to August 2015. USGS proposes to use one source vessel, the
The
The proposed survey would be bounded by the following geographic coordinates:
40.5694° North, –66.5324° West;
38.5808° North, –61.7105° West;
29.2456° North, –72.6766° West;
33.1752° North, –75.8697° West;
39.1583° North, –72.8697° West;
The proposed activities for 2014 would generally occur towards the periphery of the proposed study area (see Figures 1 and 2 of the IHA application). The proposed activities for 2015 would survey more of the central portions of the study area. The tracklines proposed for both 2014 and 2015 would be in International Waters (approximately 80% in 2014 and 90% in 2015) and in the U.S. EEZ. Water depths range from approximately 1,450 to 5,400 meters (m) (4,593.2 to 17,716.5 feet [ft]) (see Figure 1 and 2 of the IHA application); no survey lines would extend to water depths less than 1,000 m.
USGS, Coastal and Marine Geology Program, (Primary Investigator [PI], Dr. Deborah Hutchinson) proposes to conduct a regional high-energy, two-dimensional (2D) seismic survey in the northwest Atlantic Ocean within the U.S. EEZ and extending into International Waters as far as 648.2 km (350 nmi) from the U.S. coast (see Figure 1 of the IHA application). Water depths in the survey area range from approximately 1,400 to greater than 5,400 meters (m) (4,593.2 to 17,716.5 feet [ft]). The proposed seismic survey would be scheduled to occur in two phases; the first phase during August to September 2014 (for approximately 17 to 18 days), and the second phase between April and August 2015 (for approximately 17 to 18 days, specific dates to be determined). The proposed activities for both Phase 1 and Phase 2 are included in this IHA application (see Figure 2 of the IHA application). Some minor deviation from these dates is possible, depending on logistics and weather.
USGS proposes to use conventional seismic methodology to: (1) Identify the outer limits of the U.S. continental shelf, also referred to as the ECS as defined by Article 76 of the Convention of the Law of the Sea; and (2) study the sudden mass transport of sediments down the continental shelf as submarine landslides that may pose significant tsunamigenic (i.e., tsunami-related) hazards to the Atlantic and Caribbean coastal communities.
The proposed survey would involve one source vessel, the
Each proposed leg of the survey (2014 and 2015) would be 17 to 18 days in duration (exclusive of transit and equipment deployment and recovery) and would comprise of approximately 3,165 km (1,709 nmi) of tracklines of 2D seismic reflection coverage. The airgun array would operate continuously during the proposed survey (except for equipment testing, repairs, implemented mitigation measures, etc.). Data would continue to be acquired between line changes, as the successive track segments can be surveyed as almost one continuous line. Line turns of 90 and no greater than 120 degrees would be required to move from one line segment to the next. The 2014 proposed survey design consists primarily of the tracklines that run along the periphery of the overall study area, including several internal tracklines (see Figure 2 of the IHA application). The 2015 proposed survey design consists of additional dip and tie lines (i.e., dip lines are lines that are perpendicular to the north-south trend of the continental margin; strike lines are parallel to the margin; and tie lines are any line that connects other lines). The 2015 proposed survey design may be modified based on the 2014 results.
In addition to the operations of the airgun array, a Kongsberg EM 122 multi-beam echosounder and a Knudsen Model 3260 Chirp sub-bottom profiler would also be operated from the
The
The vessel has a length of 71.5 m (235 ft); a beam of 17.0 m (56 ft); a maximum draft of 5.9 m (19 ft); and a gross tonnage of 3,834. The
The vessel also has an observation tower from which Protected Species Visual Observers (PSVO) would watch for marine mammals before and during the proposed airgun operations. When stationed on the observation platform, the PSVO's eye level would be approximately 21.5 m (71 ft) above sea level providing the PSVO an unobstructed view around the entire vessel. More details of the
The
The tow depth of the airgun array would be 9 m (29.5 ft) during the surveys. Because the actual source is a distributed sound source (36 airguns) rather than a single point source, the highest sound measurable at any location in the water would be less than the nominal source level. In addition, the effective source level for sound propagating in near-horizontal directions would be substantially lower than the nominal omni-directional source level applicable to downward propagation because of the directional nature of the sound from the airgun array (i.e., sound is directed downward).
Acoustic signals would be recorded using a system array of one hydrophone streamer, which would be towed behind the
This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this document. Sound pressure is the sound force per unit area, and is usually measured in micropascals (μPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is expressed as the ratio of a measured sound pressure and a reference level. The commonly used reference pressure level in underwater acoustics is 1 μPa, and the units for SPLs are dB re 1 μPa. SPL (in decibels [dB]) = 20 log (pressure/reference pressure).
SPL is an instantaneous measurement and can be expressed as the peak, the peak-to-peak (p-p), or the root mean square (rms). Root mean square (rms), which is the square root of the arithmetic average of the squared instantaneous pressure values, is typically used in discussions of the effects of sounds on vertebrates and all references to SPL in this document refer to the root mean square unless otherwise noted.
Airguns function by venting high-pressure air into the water, which creates an air bubble. The pressure signature of an individual airgun consists of a sharp rise and then fall in pressure, followed by several positive and negative pressure excursions caused by the oscillation of the resulting air bubble. The oscillation of the air bubble transmits sounds downward through the seafloor and the amount of sound transmitted in the near horizontal directions is reduced. However, the airgun array also emits sounds that travel horizontally toward non-target areas.
The nominal source levels of the airgun arrays used by L–DEO on the
Accordingly, L–DEO has predicted the received sound levels in relation to distance and direction from the 36 airgun array and the single Bolt 1900LL 40 in
Tolstoy
The L–DEO used the results from the Gulf of Mexico study to determine the algorithm for its model that calculates the mitigation exclusion zones for the 36-airgun array and the single airgun. L–DEO has used these calculated values to determine buffer (i.e., 160 dB) and exclusion zones for the 36 airgun array and previously modeled measurements by L–DEO for the single airgun, to designate exclusion zones for purposes of mitigation, and to estimate take for marine mammals in the northwest Atlantic Ocean. A detailed description of the modeling effort is provided in the NSF/USGS PEIS.
Comparison of the Tolstoy
Using the model (airgun array and single airgun), Table 1 (below) shows the distances at which three rms sound levels are expected to be received from the 36 airgun array and a single airgun. To avoid the potential for injury or permanent physiological damage (Level A harassment), NMFS's (1995, 2000) current practice is that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding 180 dB re 1 μPa and 190 dB re 1 μPa, respectively. L–DEO used these levels to establish the proposed exclusion zones. If marine mammals are detected within or about to enter the appropriate exclusion zone, the airguns would be powered-down (or shut-down, if necessary) immediately. NMFS also assumes that marine mammals exposed to levels exceeding 160 dB re 1 μPa may experience Level B harassment. Table 1 summarizes the predicted distances at which sound levels (160, 180, and 190 dB [rms]) are expected to be received from the 36 airgun array and a single airgun operating in deep water depths.
Along with the airgun operations, two additional acoustical data acquisition systems would be operated from the
The
Each ping consists of eight (in water greater than 1,000 m) or four (less than 1,000 m) successive, fan-shaped transmissions, each ensonifying a sector that extends 1° fore-aft. Continuous-wave pulses increase from 2 to 15 milliseconds (ms) long in water depths up to 2,600 m (8,350.2 ft), and frequency modulated (FM) chirp pulses up to 100 ms long are used in water greater than 2,600 m. The successive transmissions span an overall cross-track angular extent of about 150°, with 2 ms gaps between the pulses for successive sectors (see Table 1 of the IHA application).
The
Both the multi-beam echosounder and sub-bottom profiler are operated continuously during survey operations. The multi-beam echosounder and sub-bottom profiler would not operate during transits at the beginning and end of the proposed seismic survey. Actual operating parameters would be established at the time of the survey.
NMFS expects that acoustic stimuli resulting from the proposed operation of the single airgun or the 36 airgun array has the potential to harass marine mammals. NMFS does not expect that the movement of the
Forty-five species of marine mammal (37 cetaceans [whales, dolphins, and porpoises] including 30 odontocetes and 7 mysticetes, 7 pinnipeds [seals and sea lions], and 1 sirenian [manatees]) are known to occur in the western North Atlantic Ocean study area (Read
General information on the taxonomy, ecology, distribution, seasonality and movements, and acoustic capabilities of marine mammals are given in sections 3.6.1, 3.7.1, and 3.8.1 of the NSF/USGS PEIS. The general distribution of mysticetes, odontocetes, and pinnipeds in the North Atlantic Ocean is discussed in sections 3.6.3.4, 3.7.3.4, and 3.8.3.4 of the NSF/USGS PEIS, respectively. In addition, Section 3.1 of the “Atlantic OCS Proposed Geological and Geophysical Activities Mid-Atlantic and South Atlantic Planning Areas Draft Programmatic Environmental Impact Statement” (Bureau of Ocean Energy Management, 2012) reviews similar information for all marine mammals that may occur within the proposed study area.
Various systematic surveys have been conducted throughout the western North Atlantic Ocean, including within sections of the proposed study area. Records from the Ocean Biogeographic Information System (OBIS) database hosted by Rutgers University and Duke University (Read
No known current regional or stock abundance estimates are available in the proposed study area of the northwest Atlantic Ocean for the Bryde's whale (
Bryde's whales are distributed worldwide in tropical and sub-tropical waters. In the western North Atlantic Ocean, Bryde's whales are reported from off the southeastern U.S. and the southern West Indies to Cabo Frio, Brazil (Leatherwood and Reeves, 1983). No stock of Bryde's whales has been identified in U.S. waters of the Atlantic coast. The northern Gulf of Mexico population is considered a separate stock and has a best abundance estimate of 33 animals. It has been postulated that the Bryde's whales found in the northern Gulf of Mexico may represent a resident stock (Schmidly, 1981; Leatherwood and Reeves, 1983).
Fraser's dolphins are distributed worldwide in tropical waters and are assumed to be part of the cetacean fauna of the tropical western North Atlantic (Perrin
Spinner dolphins are distributed in oceanic and coastal tropical waters (Leatherwood
The Clymene dolphin is endemic to tropical and sub-tropical waters of the Atlantic (Jefferson and Curry, 2003). The western North Atlantic population of Clymene dolphins is provisionally considered a separate stock for management purposes, although there is currently no information to differentiate this stock from the northern Gulf of Mexico stock. The numbers of Clymene dolphins off the U.S. or Canadian Atlantic coast are unknown, and seasonal abundance estimates are not available for this species since it was rarely seen in any surveys. The best abundance estimate for the Clymene dolphin in the western North Atlantic was 6,086 in 2003 and represents the first and only estimate to date for this species in the U.S. Atlantic EEZ; however this estimate is older than eight years and is deemed unreliable (Wade and Angliss, 1997; Mullin and Fulling, 2003).
The melon-headed whale is distributed worldwide in tropical to sub-tropical waters (Jefferson
The pygmy killer whale is distributed worldwide in tropical to sub-tropical waters and is assumed to be part of the cetacean fauna of the tropical western North Atlantic (Jefferson
The false killer whale is distributed worldwide throughout warm temperate and tropical oceans (Leatherwood and Reeves, 1983). No stock has been identified for false killer whales in U.S. waters off the Atlantic coast. The Gulf of Mexico population is provisionally being considered one stock for management purposes, although there is currently no information to differentiate this stock from the Atlantic Ocean stock. The current population size for the false killer whale in the northern Gulf of Mexico is unknown because the survey data is more than 8 years old; however, the most recent abundance estimate pooled from 2003 to 2004 was 777 animals (Wade and Angliss, 1997; Mullin, 2007).
Killer whales are characterized as uncommon or rare in waters of the U.S. Atlantic EEZ (Katona
Further detailed information regarding the biology, distribution, seasonality, life history, and occurrence of these marine mammal species in the proposed project area can be found in sections 3 and 4 of USGS's IHA application. NMFS has reviewed these data and determined them to be the best available scientific information for the purposes of the proposed IHA.
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operation, vessel movement, gear deployment) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of take (for example, with acoustics), we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measureable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity would be carried out or the mitigation that would be implemented, and how either of those would shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity would impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall
• Low-frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Phocid pinnipeds in water: Functional hearing is estimated to occur between approximately 75 Hz and 100 kHz;
• Otariid pinnipeds in water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.
As mentioned previously in this document, 38 marine mammal species (34 cetacean and 4 pinniped species) are likely to occur in the proposed seismic survey area. Of the 34 cetacean species likely to occur in USGS's proposed action area, 7 are classified as low-frequency cetaceans (i.e., North Atlantic right, humpback, minke, Bryde's, sei, fin, and blue whale), 24 are classified as mid-frequency cetaceans (i.e., sperm, Cuvier's, True's, Gervais', Sowerby's, Blainville's, Northern bottlenose, melon-headed, pygmy killer, false killer, killer, short-finned, and long-finned whale, bottlenose, Atlantic white-sided, Fraser's, Atlantic spotted, pantropical spotted, striped, spinner, Clymene, short-beaked common, rough-toothed, and Risso's dolphin), and 3 are classified as high-frequency cetaceans (i.e., pygmy sperm and dwarf sperm whale and harbor porpoise) (Southall
Acoustic stimuli generated by the operation of the airguns, which introduce sound into the marine environment, may have the potential to cause Level B harassment of marine mammals in the proposed survey area. The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking (of natural sounds including inter- and intra-specific calls), behavioral disturbance, temporary or permanent hearing impairment, or non-auditory physical or physiological effects (Richardson
Richardson
Numerous studies have shown that pulsed sounds from airguns are often readily detectable in the water at distances of many kilometers. Several studies have shown that marine mammals at distances more than a few kilometers from operating seismic vessels often show no apparent response (Malme
The term masking refers to the inability of a subject to recognize the occurrence of an acoustic stimulus as a result of the interference of another acoustic stimulus (Clark
Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited. Because of the intermittent nature and low duty cycle of seismic airgun pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. However, in some situations, reverberation occurs for much or the entire interval between pulses (e.g., Simard
Marine mammals are thought to be able to compensate for masking by adjusting their acoustic behavior through shifting call frequencies, increasing call volume, and increasing vocalization rates. For example, blue whales are found to increase call rates when exposed to noise from seismic surveys in the St. Lawrence Estuary (Dilorio and Clark, 2009). The North Atlantic right whales exposed to high shipping noise increased call frequency (Parks
Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. Disturbance includes a variety of effects, including (but not limited to) subtle to conspicuous changes in behavior, movement, and displacement (Nowacek
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, and/or reproduction. Some of these significant behavioral modifications include:
• Change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cessation of feeding or social interaction.
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Richardson
Studies of gray, bowhead, and humpback whales have shown that seismic pulses with received levels of 160 to 170 dB re 1 μPa (rms) seem to cause obvious avoidance behavior in a
Researchers have studied the responses of humpback whales to seismic surveys during migration, feeding during the summer months, breeding while offshore from Angola, and wintering offshore from Brazil. McCauley
Data collected by observers during several seismic surveys in the Northwest Atlantic showed that sighting rates of humpback whales were significantly greater during non-seismic periods compared with periods when a full array was operating (Moulton and Holst, 2010). In addition, humpback whales were more likely to swim away and less likely to swim towards a vessel during seismic vs. non-seismic periods (Moulton and Holst, 2010).
Humpback whales on their summer feeding grounds in southeast Alaska did not exhibit persistent avoidance when exposed to seismic pulses from a 1.64–L (100 in
Studies have suggested that South Atlantic humpback whales in the South Atlantic Ocean wintering off Brazil may be displaced or even strand upon exposure to seismic surveys (Engel
Reactions of migrating and feeding (but not wintering) gray whales to seismic surveys have been studied. Malme
Various species of
Ship-based monitoring studies of baleen whales (including blue, fin, sei, minke, and humpback whales) in the Northwest Atlantic found that overall, this group had lower sighting rates during seismic vs. non-seismic periods (Moulton and Holst, 2010). Baleen whales as a group were also seen significantly farther from the vessel during seismic compared with non-seismic periods, and they were more often seen to be swimming away from the operating seismic vessel (Moulton and Holst, 2010). Blue and minke whales were initially sighted significantly farther from the vessel during seismic operations compared to non-seismic periods; the same trend was observed for fin whales (Moulton and Holst, 2010). Minke whales were most often observed to be swimming away from the vessel when seismic operations were underway (Moulton and Holst, 2010).
Data on short-term reactions by cetaceans to impulsive noises are not necessarily indicative of long-term or biologically significant effects. It is not known whether impulsive sounds affect reproductive rate or distribution and habitat use in subsequent days or years. However, gray whales have continued to migrate annually along the west coast of North America with substantial increases in the population over recent years, despite intermittent seismic exploration (and much ship traffic) in that area for decades (Appendix A in
Seismic operators and Protected Species Observers (PSOs) on seismic vessels regularly see dolphins and other small toothed whales near operating airgun arrays, but in general there is a tendency for most delphinids to show some avoidance of operating seismic vessels (e.g., Goold, 1996a,b,c; Calambokidis and Osmek, 1998; Stone, 2003; Moulton and Miller, 2005; Holst
Results of reactions to seismic operations for porpoises depend on species. The limited available data suggest that harbor porpoises show stronger avoidance of seismic operations than do Dall's porpoises (
Most studies of sperm whales exposed to airgun sounds indicate that the sperm whale shows considerable tolerance of airgun pulses (e.g., Stone, 2003; Moulton
There are almost no specific data on the behavioral reactions of beaked whales to seismic surveys. However, some northern bottlenose whales remained in the general area and continued to produce high-frequency clicks when exposed to sound pulses from distant seismic surveys (Gosselin and Lawson, 2004; Laurinolli and Cochrane, 2005; Simard
There are indications that some beaked whales may strand when naval exercises involving mid-frequency sonar operation are ongoing nearby (e.g., Simmonds and Lopez-Jurado, 1991; Frantzis, 1998; NOAA and USN, 2001; Jepson
Odontocete reactions to large arrays of airguns are variable and, at least for delphinids and Dall's porpoises, seem to be confined to a smaller radius than has been observed for the more responsive of some mysticetes. However, other data suggest that some odontocete species, including harbor porpoises, may be more responsive than might be expected given their poor low-frequency hearing. Reactions at longer distances may be particularly likely when sound propagation conditions are conducive to transmission of the higher frequency components of airgun sound to the animals' location (DeRuiter
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran, Carder, Schlundt, and Ridgway, 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of threshold shift just after exposure is called the initial threshold shift. If the threshold shift eventually returns to zero (i.e., the threshold returns to the pre-exposure value), it is called temporary threshold shift (TTS) (Southall
Researchers have studied TTS in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall
To avoid the potential for injury (i.e., Level A harassment), NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not be exposed to pulsed underwater noise at received levels exceeding 180 and 190 dB re 1 μPa (rms), respectively. The established 180 and 190 dB (rms) criteria are not considered to be the levels above which TTS might occur. Rather, they are the received levels above which, in the view of a panel of bioacoustics specialists convened by NMFS before TTS measurements for marine mammals started to become available, one could not be certain that there would be no injurious effects, auditory or otherwise, to marine mammals. NMFS also assumes that cetaceans and pinnipeds exposed to levels exceeding 160 dB re 1 μPa (rms) may experience Level B harassment.
For toothed whales, researchers have derived TTS information for odontocetes from studies on the bottlenose dolphin and beluga. The experiments show that exposure to a single impulse at a received level of 207 kPa (or 30 psi, p-p), which is equivalent to 228 dB re 1 Pa (p-p), resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within 4 minutes of the exposure (Finneran
For baleen whales, there are no data, direct or indirect, on levels or properties of sound that are required to induce TTS. The frequencies to which baleen whales are most sensitive are assumed to be lower than those to which odontocetes are most sensitive, and natural background noise levels at those low frequencies tend to be higher. As a result, auditory thresholds of baleen whales within their frequency band of best hearing are believed to be higher (less sensitive) than are those of odontocetes at their best frequencies (Clark and Ellison, 2004). From this, it is suspected that received levels causing TTS onset may also be higher in baleen whales than those of odontocetes (Southall
Relationships between TTS and PTS thresholds have not been studied in marine mammals, but are assumed to be similar to those in humans and other terrestrial mammals (Southall
Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS would occur. Baleen whales generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent as those of cetaceans, and occasionally they seem to be attracted to operating seismic vessels (NMFS, 2010).
In general, very little is known about the potential for seismic survey sounds (or other types of strong underwater sounds) to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited to short distances and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
Marine mammals are known to strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci
Over the past 12 years, there have been five stranding events coincident with military mid-frequency active sonar use in which exposure to sonar is believed to have been a contributing factor to strandings: Greece (1996); the Bahamas (2000); Madeira (2000); Canary Islands (2002); and Spain (2006). Refer to Cox
Specific sound-related processes that lead to strandings and mortality are not well documented, but may include:
(1) Swimming in avoidance of a sound into shallow water;
(2) A change in behavior (such as a change in diving behavior) that might contribute to tissue damage, gas bubble formation, hypoxia, cardiac arrhythmia, hypertensive hemorrhage or other forms of trauma;
(3) A physiological change such as a vestibular response leading to a behavioral change or stress-induced hemorrhagic diathesis, leading in turn to tissue damage; and
(4) Tissue damage directly from sound exposure, such as through acoustically-mediated bubble formation and growth or acoustic resonance of tissues.
Seismic pulses and mid-frequency sonar signals are quite different, and some mechanisms by which sonar sounds have been hypothesized to affect beaked whales are unlikely to apply to airgun pulses. Sounds produced by airgun arrays are broadband impulses with most of the energy below one kHz. Typical military mid-frequency sonar emits non-impulse sounds at frequencies of 2 to 10 kHz, generally with a relatively narrow bandwidth at any one time. A further difference between seismic surveys and naval exercises is that naval exercises can involve sound sources on more than one vessel. Thus, it is not appropriate to expect that the same effects to marine mammals would result from military sonar and seismic surveys. However, evidence that sonar signals can, in special circumstances, lead (at least indirectly) to physical damage and mortality (e.g., Balcomb and Claridge, 2001; NOAA and USN, 2001; Jepson
There is no conclusive evidence of cetacean strandings or deaths at sea as a result of exposure to seismic surveys, but a few cases of strandings in the general area where a seismic survey was ongoing have led to speculation concerning a possible link between seismic surveys and strandings. Suggestions that there was a link between seismic surveys and strandings of humpback whales in Brazil (Engel
(1) The high likelihood that any beaked whales nearby would avoid the approaching vessel before being exposed to high sound levels, and
(2) Differences between the sound sources operated by L–DEO and those involved in the naval exercises associated with strandings.
USGS would operate the Kongsberg EM 122 multi-beam echosounder from the source vessel during the planned study. Sounds from the multi-beam echosounder are very short pulses, occurring for 2 to 15 ms once every 5 to 20 s, depending on water depth. Most of the energy in the sound pulses emitted by this multi-beam echosounder is at frequencies near 12 kHz, and the maximum source level is 242 dB re 1 μPa (rms). The beam is narrow (1 to 2°) in fore-aft extent and wide (150°) in the cross-track extent. Each ping consists of eight (in water greater than 1,000 m deep) or four (in water less than 1,000 m deep) successive fan-shaped transmissions (segments) at different cross-track angles. Any given mammal at depth near the trackline would be in the main beam for only one or two of the nine segments. Also, marine mammals that encounter the Kongsberg EM 122 are unlikely to be subjected to repeated pulses because of the narrow fore–aft width of the beam and would receive only limited amounts of pulse energy because of the short pulses. Animals close to the ship (where the beam is narrowest) are especially unlikely to be ensonified for more than one 2 to 15 ms pulse (or two pulses if in the overlap area). Similarly, Kremser
Navy sonars that have been linked to avoidance reactions and stranding of cetaceans: (1) Generally have longer pulse duration than the Kongsberg EM 122; and (2) are often directed close to horizontally versus more downward for the multi-beam echosounder. The area of possible influence of the multi-beam echosounder is much smaller—a narrow band below the source vessel. Also, the duration of exposure for a given marine mammal can be much longer for naval sonar. During USGS's operations, the individual pulses would be very short, and a given mammal would not receive many of the downward-directed pulses as the vessel passes by. Possible effects of a multi-beam echosounder on marine mammals are described below.
Captive bottlenose dolphins and a beluga whale exhibited changes in behavior when exposed to 1 s tonal signals at frequencies similar to those that would be emitted by the multi-beam echosounder used by USGS, and to shorter broadband pulsed signals. Behavioral changes typically involved what appeared to be deliberate attempts to avoid the sound exposure (Schlundt
USGS would also operate a sub-bottom profiler from the source vessel during the proposed survey. Sounds from the sub-bottom profiler are very short pulses, occurring for 1 to 4 ms once every few (3 to 6) seconds. Most of the energy in the sound pulses emitted by the sub-bottom profiler is at 3.5 kHz, and the beam is directed downward. The sub-bottom profiler on the
Vessel movement in the vicinity of marine mammals has the potential to result in either a behavioral response or a direct physical interaction. Both scenarios are discussed below in this section.
Behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors, such as species, behavioral contexts, geographical regions, source characteristics (moving or stationary, speed, direction, etc.), prior experience of the animal and physical status of the animal. For example, studies have shown that beluga whales' reaction varied when exposed to vessel noise and traffic. In some cases, beluga whales exhibited rapid swimming from ice-breaking vessels up to 80 km (43.2 nmi) away, and showed changes in surfacing, breathing, diving, and group composition in the Canadian high Arctic where vessel traffic is rare (Finley
In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: Habituation often occurred rapidly, attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales changed from frequent positive interest (e.g., approaching vessels) to generally uninterested reactions; fin whales changed from mostly negative (e.g., avoidance) to uninterested reactions; fin whales changed from mostly negative (e.g., avoidance) to uninterested reactions; right whales apparently continued the same variety of responses (negative, uninterested, and positive responses) with little change; and humpbacks dramatically changed from mixed responses that were often negative to reactions that were often strongly positive. Watkins (1986) summarized that “whales near shore, even in regions with low vessel traffic, generally have become less wary of boats and their noises, and they have appeared to be less easily disturbed than previously. In particular locations with intense shipping and repeated approaches by boats (such as the whale-watching areas of Stellwagen Bank), more and more whales had positive reactions to familiar vessels, and they also occasionally approached other boats and yachts in the same ways.”
Although the radiated sound from the
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., the sperm whale). In addition, some baleen whales, such as the North Atlantic right whale, seem generally unresponsive to vessel sound, making them more susceptible to vessel collisions (Nowacek
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus, 2001; Laist
USGS's proposed operation of one source vessel for the proposed survey is relatively small in scale compared to the number of commercial ships transiting at higher speeds in the same area on an annual basis. The probability of vessel and marine mammal interactions occurring during the proposed survey is unlikely due to the
As a final point, the
Entanglement can occur if wildlife becomes immobilized in survey lines, cables, nets, or other equipment that is moving through the water column. The proposed seismic survey would require towing of seismic equipment and cables. The large airgun array and hydrophone streamer carries the risk of entanglement for marine mammals. Wildlife, especially slow moving individuals, such as large whales, have a low probability of becoming entangled due to the slow speed of the survey vessel and onboard monitoring efforts. There are no recorded cases of entanglement of marine mammals during the conduct of over 8 years of seismic surveys on the
The potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the “Proposed Mitigation” and “Proposed Monitoring and Reporting” sections) which, as noted, are designed to effect the least practicable impact on affected marine mammal species and stocks.
The proposed seismic survey is not anticipated to have any permanent impact on habitats used by the marine mammals in the proposed survey area, including the food sources they use (i.e., fish and invertebrates). Additionally, no physical damage to any habitat is anticipated as a result of conducting the proposed seismic survey. While it is anticipated that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat is temporary and was considered in further detail earlier in this document, as behavioral modification. The main impact associated with the proposed activity would be temporarily elevated noise levels and the associated direct effects on marine mammals in any particular area of the proposed project area, previously discussed in this notice. The proposed 2014 and 2015 seismic survey is not operating in a small, defined location. During the proposed 3,165 km (1,709 nmi) and 3,115 km (1,682 nmi) of tracklines in 2014 and 2015, respectively, the vessel would continuously move along the tracklines during the survey. The next section discusses the potential impacts of anthropogenic sound sources on common marine mammal prey in the proposed survey area (i.e., fish and invertebrates).
One reason for the adoption of airguns as the standard energy source for marine seismic surveys is that, unlike explosives, they have not been associated with large-scale fish kills. However, existing information on the impacts of seismic surveys on marine fish and invertebrate populations is limited. There are three types of potential effects of exposure to seismic surveys: (1) Pathological, (2) physiological, and (3) behavioral. Pathological effects involve lethal and temporary or permanent sub-lethal injury. Physiological effects involve temporary and permanent primary and secondary stress responses, such as changes in levels of enzymes and proteins. Behavioral effects refer to temporary and (if they occur) permanent changes in exhibited behavior (e.g., startle and avoidance behavior). The three categories are interrelated in complex ways. For example, it is possible that certain physiological and behavioral changes could potentially lead to an ultimate pathological effect on individuals (i.e., mortality).
The specific received sound levels at which permanent adverse effects to fish potentially could occur are little studied and largely unknown. Furthermore, the available information on the impacts of seismic surveys on marine fish is from studies of individuals or portions of a population; there have been no studies at the population scale. The studies of individual fish have often been on caged fish that were exposed to airgun pulses in situations not representative of an actual seismic survey. Thus, available information provides limited insight on possible real-world effects at the ocean or population scale. This makes drawing conclusions about impacts on fish problematic because, ultimately, the most important issues concern effects on marine fish populations, their viability, and their availability to fisheries.
Hastings and Popper (2005), Popper (2009), and Popper and Hastings (2009a,b) provided recent critical reviews of the known effects of sound on fish. The following sections provide a general synopsis of the available information on the effects of exposure to seismic and other anthropogenic sound as relevant to fish. The information comprises results from scientific studies of varying degrees of rigor plus some anecdotal information. Some of the data sources may have serious shortcomings in methods, analysis, interpretation, and reproducibility that must be considered when interpreting their results (see Hastings and Popper, 2005). Potential adverse effects of the program's sound sources on marine fish are noted.
Little is known about the mechanisms and characteristics of damage to fish that may be inflicted by exposure to seismic survey sounds. Few data have been presented in the peer-reviewed scientific literature. As far as USGS and NMFS know, there are only two papers with proper experimental methods, controls, and careful pathological investigation implicating sounds produced by actual seismic survey airguns in causing adverse anatomical effects. One such study indicated anatomical damage, and the second indicated TTS in fish hearing. The anatomical case is McCauley
Wardle
An experiment of the effects of a single 700 in
Some studies have reported, some equivocally, that mortality of fish, fish eggs, or larvae can occur close to seismic sources (Kostyuchenko, 1973; Dalen and Knutsen, 1986; Booman
The Minerals Management Service (MMS, 2005) assessed the effects of a proposed seismic survey in Cook Inlet. The seismic survey proposed using three vessels, each towing two, four-airgun arrays ranging from 1,500 to 2,500 in
In general, any adverse effects on fish behavior or fisheries attributable to seismic surveys may depend on the species in question and the nature of the fishery (season, duration, fishing method). They may also depend on the age of the fish, its motivational state, its size, and numerous other factors that are difficult, if not impossible, to quantify at this point, given such limited data on effects of airguns on fish, particularly under realistic at-sea conditions.
The existing body of information on the impacts of seismic survey sound on marine invertebrates is very limited. However, there is some unpublished and very limited evidence of the potential for adverse effects on invertebrates, thereby justifying further discussion and analysis of this issue. The three types of potential effects of exposure to seismic surveys on marine invertebrates are pathological, physiological, and behavioral. Based on the physical structure of their sensory organs, marine invertebrates appear to be specialized to respond to particle displacement components of an impinging sound field and not to the pressure component (Popper
The only information available on the impacts of seismic surveys on marine invertebrates involves studies of individuals; there have been no studies at the population scale. Thus, available information provides limited insight on possible real-world effects at the regional or ocean scale. The most important aspect of potential impacts concerns how exposure to seismic survey sound ultimately affects invertebrate populations and their viability, including availability to fisheries.
Literature reviews of the effects of seismic and other underwater sound on invertebrates were provided by Moriyasu
Some studies have suggested that seismic survey sound has a limited pathological impact on early developmental stages of crustaceans (Pearson
Andre
In order to issue an Incidental Take Authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).
USGS has reviewed the following source documents and has incorporated a suite of appropriate mitigation measures into their project description.
(1) Protocols used during previous NSF and USGS-funded seismic research cruises as approved by NMFS and detailed in the NSF/USGS PEIS;
(2) Previous IHA applications and IHAs approved and authorized by NMFS; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the proposed activities, USGS and/or its designees have proposed to implement the following mitigation measures for marine mammals:
(1) Planning Phase;
(2) Proposed exclusion zones around the airgun(s);
(3) Power-down procedures;
(4) Shut-down procedures;
(5) Ramp-up procedures; and
(6) Special procedures for situations or species of concern.
If the PSVO detects marine mammal(s) within or about to enter the appropriate exclusion zone, the
If the PSVO detects a marine mammal outside the exclusion zone that is likely to enter the exclusion zone, USGS would power-down the airguns to reduce the size of the 180 dB or 190 dB exclusion zone before the animal is within the exclusion zone. Likewise, if a mammal is already within the exclusion zone, when first detected USGS would power-down the airguns immediately. During a power-down of the airgun array, USGS would operate the single 40 in
• The PSVO has visually observed the animal leave the exclusion zone, or
• A PSVO has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or
• The vessel has transited outside the original 180 dB or 190 dB exclusion zone after a 10 minute wait period.
The
Because the vessel would have transited away from the vicinity of the original sighting during the 10 minute period, implementing ramp-up procedures for the full array after an extended power-down (i.e., transiting for an additional 35 minutes from the location of initial sighting) would not meaningfully increase the effectiveness of observing marine mammals approaching or entering the exclusion zone for the full source level and would not further minimize the potential for take. The
(1) If an animal enters the exclusion zone of the single airgun after USGS has initiated a power-down; or
(2) If an animal is initially seen within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating (and it is not practical or adequate to reduce exposure to less than 180 dB [rms] or 190 dB [rms]).
Considering the conservation status for the North Atlantic right whale, the airguns would be shut-down immediately in the unlikely event that this species is observed, regardless of the distance from the
During periods of active seismic operations, there are occasions when the
If the full exclusion zone is not visible to the PSVO for at least 30 minutes prior to the start of operations in either daylight or nighttime, the
If one airgun has operated during a power-down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew would not initiate ramp-up of the airguns if a marine mammal is sighted within or near the applicable exclusion zones.
Ramp-up would begin with the smallest airgun in the array (40 in
If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, USGS would not commence the ramp-up unless at least one airgun (40 in
For short-duration equipment maintenance activities, USGS would employ the use of a small-volume airgun (i.e., 40 in
During brief transits (e.g., less than three hours), one mitigation airgun would continue operating. The ramp-up procedure would still be followed when increasing the source levels from one airgun to the full airgun array. However, keeping one airgun firing would avoid the prohibition of a “cold start” during darkness or other periods of poor visibility. Through use of this approach, seismic operations may resume without the 30 minute observation period of the full exclusion zone required for a “cold start,” and without ramp-up if operating with the mitigation airgun for under 10 minutes, or with ramp-up if operating with the mitigation airgun over 10 minutes. PSOs would be on duty whenever the airguns are firing during daylight, during the 30 minute periods prior to ramp-ups.
NMFS has carefully evaluated the applicant's proposed mitigation measures and has considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammal wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the numbers of marine mammals (total number of number at biologically important time or location) exposed to received levels of airgun operations, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
(3) A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of airgun operations, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of airgun operations, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
(5) Avoidance of minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on NMFS's evaluation of the applicant's proposed measures, as well as other measures considered by NMFS or recommended by the public, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that would result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. USGS submitted a marine mammal monitoring plan as part of the IHA application. It can be found in Section 13 of the IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
(1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of seismic airguns that we associate with specific adverse effects, such as behavioral harassment, TTS or PTS;
(3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict receive level, distance from the source, and other pertinent information);
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
USGS proposes to sponsor marine mammal monitoring during the proposed project, in order to implement the proposed mitigation measures that require real-time monitoring, and to satisfy the anticipated monitoring requirements of the IHA. USGS's proposed “Monitoring Plan” is described below this section. The monitoring work described here has been planned as a self-contained project independent of any other related monitoring projects that may be occurring simultaneously in the same region. USGS is prepared to discuss coordination of its monitoring program with any related work that might be done by other groups insofar as this is practical and desirable.
PSVOs would be based aboard the seismic source vessel and would watch for marine mammals near the vessel during daytime airgun operations and during any ramp-ups of the airguns at night. PSVOs would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shut-down (i.e., greater than approximately 10 minutes for this proposed cruise). When feasible, PSVOs would conduct observations during daytime periods when the seismic system is not operating (such as during transits) for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on PSVO observations, the airguns would be powered-down or shut-down when marine mammals are observed within or about to enter a designated exclusion zone.
During seismic operations in the northwest Atlantic Ocean off the Eastern Seaboard, at least five PSOs (four PSVOs and one Protected Species Acoustic Observer [PSAO]) would be based aboard the
Two PSVOs would also be on visual watch during all daytime ramp-ups of the seismic airguns. A third PSAO would monitor the PAM equipment 24 hours a day to detect vocalizing marine mammals present in the action area. In summary, a typical daytime cruise would have scheduled two PSVOs on duty from the observation tower, and a third PSAO on PAM. Other ship's crew would also be instructed to assist in detecting marine mammals and implementing mitigation requirements (if practical). Before the start of the seismic survey, the crew would be given additional instruction on how to do so.
The
When marine mammals are detected within or about to enter the designated exclusion zone, the airguns would immediately be powered-down or shut-down if necessary. The PSVO(s) would continue to maintain watch to determine when the animal(s) are outside the exclusion zone by visual confirmation. Airgun operations would not resume until the animal is confirmed to have left the exclusion zone, or if not observed after 15 minutes for species with shorter dive durations (small odontocetes and pinnipeds) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).
Vessel-based, towed PAM would complement the visual monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. PAM can be used in addition to visual observations to improve detection, identification, and localization of cetaceans. The PAM system would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it does not depend on good visibility. It would be monitored in real-time so that the PSVOs can be advised when cetaceans are acoustically detected.
The PAM system consists of both hardware (i.e., hydrophones) and
One PSAO, an expert bioacoustician (in addition to the four PSVOs) with primary responsibility for PAM, would be onboard the
When a vocalization is detected while visual observations (during daylight) are in progress, the PSAO would contact the PSVO immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), and to allow a power-down or shut-down to be initiated, if required. When bearings (primary and mirror-image) to calling cetacean(s) are determined, the bearings would be relayed to the PSVO(s) to help him/her sight the calling animal. During non-daylight hours, when a cetacean is detected by acoustic monitoring and may be close to the source vessel, the
The information regarding the call would be entered into a database. Data entry would include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. The acoustic detection can also be recorded for further analysis.
PSVOs would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. Data would be used to estimate numbers of animals potentially `taken' by harassment. They would also provide information needed to order a power-down or shut-down of the airguns when a marine mammal is within or near the appropriate exclusion zone. Observations would also be made during daytime periods when the
When a sighting is made, the following information about the sighting would be recorded:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.
2. Time, location, heading, speed, activity of the vessel, Beaufort sea state and wind force, visibility, and sun glare.
The data listed under (2) would also be recorded at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
All observations and ramp-ups, power-downs, or shut-downs would be recorded in a standardized format. The PSVOs would record this information onto datasheets. During periods between watches and periods when operations are suspended, those data would be entered into a laptop computer running a custom electronic database. The accuracy of the data entry would be verified by computerized data validity checks as the data are entered and by subsequent manual checking of the database. These procedures would allow initial summaries of data to be prepared during and shortly after the field program, and would facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations would provide:
1. The basis for real-time mitigation (airgun power-down or shut-down).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which must be reported to NMFS.
3. Data on the occurrence, distribution, and activities of marine mammals in the area where the seismic study is conducted.
4. Information to compare the distance and distribution of marine mammals relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals seen at times with and without seismic activity.
USGS would submit a comprehensive report to NMFS and NSF within 90 days after the end of phase 1 in 2014 and another comprehensive report to NMFS and NSF within 90 days after the end of phase 2 in 2015 for the proposed cruise. The report would describe the proposed operations that were conducted and sightings of marine mammals within the vicinity of the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (i.e., dates, times, locations, activities, associated seismic survey activities, and associated PAM detections). The report would minimally include:
• Summaries of monitoring effort—total hours, total distances, and distribution of marine mammals through the study period accounting for Beaufort sea state and wind force, and other factors affecting visibility and detectability of marine mammals;
• Analyses of the effects of various factors influencing detectability of
• Species composition, occurrence, and distribution of marine mammals sightings including date, water depth, numbers, age/size/gender, and group sizes; and analyses of the effects of seismic operations;
• Sighting rates of marine mammals during periods with and without airgun activities (and other variables that could affect detectability);
• Initial sighting distances versus airgun activity state;
• Closest point of approach versus airgun activity state;
• Observed behaviors and types of movements versus airgun activity state;
• Numbers of sightings/individuals seen versus airgun activity state; and
• Distribution around the source vessel versus airgun activity state.
The report would also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways. After the report is considered final, it would be publicly available on the NMFS, USGS and NSF Web sites at:
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source used in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
USGS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with USGS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USGS may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as NMFS describes in the next paragraph), the USGS would immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, at 301–427–8401 and/or by email to
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the USGS would report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office or Protected Resources, at 301–427–8401 and/or by email to
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Level B harassment is anticipated and proposed to be authorized as a result of the proposed marine seismic survey in the northwest Atlantic Ocean off the Eastern Seaboard. Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the seismic airgun array are expected to result in the behavioral disturbance of some marine mammals. There is no evidence that the planned activities for which USGS seeks the IHA could result in injury, serious injury, or mortality. The required mitigation and monitoring measures would minimize any potential risk for injury, serious injury, or mortality.
The following sections describe USGS's methods to estimate take by incidental harassment and present the applicant's and NMFS's estimates of the numbers of marine mammals that could be affected during the proposed seismic program in the northwest Atlantic Ocean. The estimates are based on a consideration of the number of marine mammals that could be harassed by seismic operations with the 36 airgun array to be used. The length of the proposed 2D seismic survey area in 2014 is approximately 3,165 km (1,704 nmi) and in 2015 is approximately 3,115 km (1,682 nmi) in the U.S. ECS region of the Eastern Seaboard in the Atlantic Ocean, as depicted in Figure 1 of the IHA application. For estimating take and other calculations, the 2015 tracklines are assumed to be identical in length to the 2014 tracklines (even though they are slightly shorter).
USGS assumes that, during simultaneous operations of the airgun array and the other sources, any marine mammals close enough to be affected by the multi-beam echosounder and sub-bottom profiler would already be affected by the airguns. However, whether or not the airguns are operating simultaneously with the other sources, marine mammals are expected to exhibit no more than short-term and inconsequential responses to the multi-beam echosounder and sub-bottom profiler given their characteristics (e.g., narrow, downward-directed beam) and other considerations described previously. Such reactions are not considered to constitute “taking” (NMFS, 2001). Therefore, USGS provided no additional allowance for animals that could be affected by sound sources other than airguns.
Density estimates for marine mammals within the vicinity of the proposed study area are limited. Density data for species found along the East Coast of the U.S. generally extend slightly outside of the U.S. EEZ. The proposed study area, however, is well beyond the U.S. EEZ, and is well off the continental shelf break. The proposed survey lines for the proposed 2014 survey are located in the far eastern portion of the proposed study area, primarily within the area where little to no density data are currently available. It was determined that the best available information for density data (for those species where density data existed) of species located off the U.S. East Coast was housed at the Strategic Environmental and Development Program (SERDP)/National Aeronautics and Space Administration (NASA)/NOAA Marine Animal Model Mapper and OBIS–SEAMAP database. Within this database, the model outputs for all four seasons from the U.S. Department of the Navy Operating Area (OPAREA) Density Estimates (NODE) for the Northeast OPAREA and Southeast OPAREA (Department of the Navy 2007a, 2007b) were used to determine the mean density (animals per square kilometer) for 19 of the 38 marine mammals with the potential to occur in the proposed study area. Those species include fin, minke, Atlantic spotted, bottlenose, long-finned and short-finned pilot, pantropical spotted, Risso's, short-beaked common, striped, sperm, rough-toothed, dwarf and pygmy sperm, Sowerby's, Blainville's, Gervais', True's, and Cuvier's beaked whales. Within the NODE document, the density calculations and models both took into account detection probability (ƒ[0]) and availability (g[0]) biases. Model outputs for each season are available in the database. The data from the NODE summer density models, which include the months of June, July, and August, were used as the 2014 survey is proposed to take place between late August and early September. Of the seasonal NODE density models available, it is expected that the summer models are the most accurate and robust as the survey data used to create all of the models were obtained during summer months. The models for the winter, spring, and fall are derived from the data collected during the summer surveys, and therefore are expected to be less representative of actual species density during those seasons.
For those species of marine mammals that did not have density model outputs within the SERDP/NASA/NOAA and OBIS–SEAMAP database, or for those species with density outputs that did not extend into the proposed study area at all (i.e., all four pinniped species and sei whale), but for which OBIS sightings data within or adjacent to the proposed study area exist, the requested take authorization for the mean group size of the species of marine mammal is included. The mean group sizes were determined based on data reported from the Cetacean and Turtle Assessment Program (CeTAP) surveys (CeTAP, 1982).
The estimated numbers of individuals potentially exposed to sound during the proposed 2014 to 2015 survey are presented below and are based on the 160 dB (rms) criterion currently used for all cetaceans and pinnipeds. It is assumed that marine mammals exposed to airgun sounds that strong could change their behavior sufficiently to be considered “taken by harassment.” Table 4 shows the density estimates calculated as described above and the estimates of the number of different individual marine mammals that potentially could be exposed to greater than or equal to 160 dB (rms) during the seismic survey if no animals moved away from the survey vessel. The requested take authorization is given in the middle (fourth from the left) column of Table 4. For species for which densities were unavailable as described above, but for which there were Ocean Biogeographic Information System (OBIS) sightings within or adjacent to the proposed study area, USGS has
It should be noted that unlike previous USGS, NSF, and L–DEO seismic surveys aboard the
The number of different individuals that could be exposed to airgun sounds with received levels greater than or equal to 160 dB (rms) on one or more occasions can be estimated by considering the total marine area that would be within the 160 dB (rms) radius around the operating seismic source on at least one occasion, along with the expected density of animals in the area. The number of possible exposures (including repeated exposures of the same individuals) can be estimated by considering the total marine area that would be within the 160 dB radius around the operating airguns. In many seismic surveys, this total marine area includes overlap, as seismic surveys are often conducted in parallel survey lines where the ensonified areas of each survey line would overlap. The proposed tracklines in 2014 and 2015 would not have overlap as the individual line segments do not run parallel to each other. The entire survey could be considered one continual survey line with slight turns (no more than 120 degrees) between each line segment. During the proposed seismic survey, the vessel would continue on the extensive survey line path, not staying within a smaller defined area as most seismic surveys often do. The numbers of different individuals potentially exposed to greater than or equal to 160 dB (rms) were calculated by multiplying the expected species density (for those marine mammal species that had density data available) times the total anticipated area to be ensonified to that level during airgun operations (3,165 km of survey lines). The total area expected to be ensonified was determined by multiplying the total trackline distance (3,165 km times the width of the swath of the 160 dB buffer zone (2 times 5.78 km). Using this approach, a total of 36,600 km
Applying the approach described above, approximately 36,600 km
USGS would coordinate the planned marine mammal monitoring program associated with the seismic survey with other parties that may have interest in this area and specified activity. USGS would coordinate with applicable U.S. agencies (e.g., NMFS), and would comply with their requirements.
Section 101(a)(5)(D) of the MMPA also requires NMFS to determine that the authorization would not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.
In making a negligible impact determination, NMFS evaluated factors such as:
(1) The number of anticipated injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited); and
(3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);
(4) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);
(5) Impacts on habitat affecting rates of recruitment/survival; and
(6) The effectiveness of monitoring and mitigation measures.
As described above and based on the following factors, the specified activities associated with the marine seismic survey are not likely to cause PTS, or other non-auditory injury, serious injury, or death. The factors include:
(1) The likelihood that, given sufficient notice through relatively slow ship speed, marine mammals are expected to move away from a noise source that is annoying prior to its becoming potentially injurious;
(2) The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;
(3) The potential for temporary or permanent hearing impairment is relatively low and would likely be avoided through the implementation of the required monitoring and mitigation measures (including power-down and shut-down measures); and
(4) The likelihood that marine mammal detection ability by trained PSOs is high at close proximity to the vessel.
Table 4 of this document outlines the number of requested Level B harassment takes that are anticipated as a result of these activities. The type of Level B (behavioral) harassment that could result from the proposed action are described in the “Potential Effects of the Specified Activity on Marine Mammals” section above, and include tolerance, masking, behavioral disturbance, TTS, PTS, and non-auditory or physiological effects.
For the marine mammal species that may occur within the proposed action area, there are no known designated or important feeding and/or reproductive areas. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
NMFS's practice has been to apply the 160 dB re 1 µPa (rms) received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall
While behavioral modifications, including temporarily vacating the area during the operation of the airgun(s), may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas for species and the short and sporadic duration of the research activities, have led NMFS to preliminary determine that the taking by Level B harassment from the specified activity would have a negligible impact on the affected species in the specified geographic region. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see “Potential Effects on Marine Mammals” section above) in this notice, the activity is not expected to impact rates of annual recruitment or survival for any affected species or stock, particularly given the NMFS and the applicant's proposal to implement mitigation and monitoring measures that would minimize impacts to marine mammals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from USGS's proposed marine seismic survey would have a negligible impact on the affected marine mammal species or stocks.
As mentioned previously, NMFS estimates that 34 species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. The population estimates for the marine mammal species that may be taken by Level B harassment are provided in Table 4 of this document. No takes of pinnipeds are expected due to a lack of species observations within the proposed study area, the great distance offshore, and the deep water depths of the proposed study area. It should be noted that the stock populations for each marine mammal species in the NMFS Stock Assessment Reports are generally for species populations in U.S. waters, which may underestimate actual population sizes for species that have ranges that would include waters outside the U.S. EEZ.
NMFS has regional population and/or stock abundance estimates for the northwest Atlantic Ocean for 26 of the species under its jurisdiction that could potentially be affected by Level B harassment over the course of the IHA. The estimate of the number of individual cetaceans by species for which NMFS has such data that could be exposed to seismic sounds with received levels greater than or equal to 160 dB re 1 μPa (rms) during the proposed survey in 2014 and 2015 is as follows: 6 North Atlantic right, 41 humpback, 4 minke, 6 sei, 6 fin, 4 blue, and 166 sperm whales, which would represent 1.32/1.32, 0.353/4.96, 0.0014/0.0096, 0.058/1.68, 0.02/0.17, 0.468/0.909, and 1.259/7.255% of the affected regional populations/stocks, respectively. In addition, 4 northern bottlenose, 168 Cuvier's and
NMFS makes its small numbers determination on the numbers of marine mammals that would be taken relative to the populations of the affected species or stocks. NMFS calculates the number of animals as a percentage of the stock population for marine mammals in the U.S. EEZ. For USGS's proposed survey, approximately 80% in 2014 and 90% in 2015 of the tracklines occur within International Waters (i.e., the high seas) and are outside of the U.S. EEZ; therefore, the regional population is more applicable for NMFS's small numbers determinations as most of the ensonified area and estimated takes are further than 200 nmi from the U.S. coastline. The requested take estimates represented as a percentage of the stock in Table 4 (above) should be reduced to 20% and 10% of the calculated levels based on the amount of activity (i.e., 80% and 90%) planned to occur outside of the U.S. EEZ in 2014 and 2015. Using the approach of calculating the number of requested take estimates within the U.S. EEZ (20% in 2014 and 10% in 2015), the take estimates provided in the preceding paragraph should change as follows (rounding up): 2 North Atlantic right, 9 humpback, 2 minke, 2 sei, 2 fin, 2 blue, and 26 sperm whales, which would represent 0.44, 1.09, <0.01, 0.56, 0.06, 0.46, and 1.14% of the affected stocks, respectively; 26 Cuvier's and
No known current regional population or stock abundance estimates for the northwest Atlantic Ocean are available for the eight remaining species under NMFS's jurisdiction that could potentially be affected by Level B harassment over the course of the IHA. These species include the Bryde's whale, Fraser's, spinner, and Clymene dolphins, and the melon-headed, pygmy killer, false killer, and killer whales. Therefore, NMFS is using older abundance estimates or abundance estimates from other areas such as the northern Gulf of Mexico stock, regional ocean basins (e.g., eastern tropical Pacific Ocean), or global summation to aid its small numbers determination for these species. These
Bryde's whales are distributed worldwide in tropical and sub-tropical waters and their occurrence in the proposed study area is rare. In the western North Atlantic Ocean, Bryde's whales are reported from off the southeastern U.S. and southern West Indies to Cabo Frio, Brazil (Leatherwood and Reeves, 1983). No stock of Bryde's whales has been identified in U.S. waters off the Atlantic coast. The northern Gulf of Mexico population is considered a separate stock and has a best abundance estimate of 33 animals. In addition, there are estimated to be 20,000 to 30,000 animals in the North Pacific Ocean. Based on all of these factors, NMFS finds that the requested take estimate of 6 Bryde's whales represents a small number relative to the affected species' population size.
Fraser's dolphins are distributed worldwide in tropical waters and their occurrence in the proposed study area is rare. There is no abundance estimates for either the western North Atlantic or the northern Gulf of Mexico stocks. The western North Atlantic population is provisionally being considered a separate stock for management purposes, although there is currently no information to differentiate this stock from the northern Gulf of Mexico stock. The numbers of Fraser's dolphins off the U.S. or Canadian Atlantic coast are unknown, and seasonal abundance estimates are not available for this stock, since it is rarely seen in any surveys. The population size for Fraser's dolphins is unknown; however, about 289,000 animals occur in the eastern tropical Pacific Ocean (Jefferson
Spinner dolphins are found in all tropical and sub-tropical oceans and their occurrence in the proposed study area is rare. The western North Atlantic population of spinner dolphins is provisionally being considered a separate stock for management purposes, although there is currently no information to differentiate this stock from the northern Gulf of Mexico stock. The numbers of spinner dolphins off the U.S. or Canadian Atlantic coast are unknown, and seasonal abundance estimates are not available for this stock since it was rarely seen in any of the surveys. The best abundance estimate available for northern Gulf of Mexico spinner dolphins is 11,441 animals. The estimated number of requested takes of 130 spinner dolphins represents 1.13% of the northern Gulf of Mexico stock. Based on all of these factors, NMFS finds that the requested take estimates represents a small number relative to the affected species' population size.
The Clymene dolphin is endemic to tropical and sub-tropical waters of the Atlantic, including the Caribbean Sea and Gulf of Mexico (Jefferson and Curry, 2003; Jefferson
Melon-headed whales are distributed worldwide in tropical to sub-tropical waters and their occurrence in the proposed study area is rare. The western North Atlantic population is provisionally being considered a separate stock from the northern Gulf of Mexico stock, although there is currently no information to differentiate this stock from the northern Gulf of Mexico stock. The numbers of melon-headed whales off the U.S. or Canadian Atlantic coast are unknown, and seasonal abundance estimates are not available for this stock, since it was rarely seen in any surveys. The best abundance estimate available for northern Gulf of Mexico melon-headed whales is 2,235 animals. The estimated number of requested takes of 200 melon-headed whales represents 8.94% of the northern Gulf of Mexico stock. Based on all of these factors, NMFS finds that the requested take estimate represents a small number relative to the affected species' population or stock size.
The pygmy killer whale is distributed worldwide in tropical to sub-tropical waters and their occurrence in the proposed study area is rare. The western North Atlantic population of pygmy killer whales is provisionally being considered one stock for management purposes. The numbers of pygmy killer whales off the U.S. or Canadian Atlantic coast are unknown, and seasonal abundance estimates are not available for this stock, since it was rarely seen in any surveys. The best abundance estimate available for the northern Gulf of Mexico pygmy killer whale is 152 animals. In addition, there are estimated to be 39,000 pygmy killer whales in the eastern tropical Pacific Ocean. The estimated number of requested takes of 50 pygmy killer whales represents 32.89% of the northern Gulf of Mexico stock, and 0.13% of the eastern tropical Pacific Ocean. Based on all of these factors, NMFS finds that the requested take estimate represents a small number relative to the affected species' population or stock size.
The false killer whale is distributed worldwide throughout warm temperate and tropical oceans and their occurrence in the proposed study area is rare. No stock has been identified for false killer whales in U.S. waters off the Atlantic coast. The Gulf of Mexico population is provisionally being considered one stock for management purposes, although there is currently no information to differentiate this stock from the Atlantic Ocean stock. The current population size for the false killer whale in the northern Gulf of Mexico is unknown because they survey data is more than 8 years old; however, the most recent abundance estimate pooled from 2004 to 2004 was 777 animals (Wade and Angliss, 1997; Mullin, 2007). The estimated number of requested takes of 30 false killer whales represents 3.86% of the northern Gulf of Mexico stock. Based on all of these factors, NMFS finds that the requested take estimate represents a small number relative to the affected species' population or stock size.
Killer whales are characterized as uncommon or rare in waters of the U.S. Atlantic EEZ (Katona
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration of the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that small numbers of marine mammals would be taken relative to the populations of the affected species or stocks. See Table 4 for the requested authorized take number of marine mammals.
Of the species of marine mammals that may occur in the proposed survey area, several are listed as endangered under the ESA, including the North Atlantic right, humpback, sei, fin, blue, and sperm whales. Under section 7 of the ESA, USGS has initiated formal consultation with the NMFS, Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, on this proposed seismic survey. NMFS's Office of Protected Resources, Permits and Conservation Division, has initiated formal consultation under section 7 of the ESA with NMFS's Office of Protected Resources, Endangered Species Act Interagency Cooperation Division, to obtain a Biological Opinion evaluating the effects of issuing the IHA on threatened and endangered marine mammals and, if appropriate, authorizing incidental take. NMFS would conclude formal section 7 consultation prior to making a determination on whether or not to issue the IHA. If the IHA is issued, USGS, in addition to the mitigation and monitoring requirements included in the IHA, would be required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS's Biological Opinion issued to both USGS and NMFS's Office of Protected Resources.
With USGS's complete application, USGS provided NMFS a “Draft Environmental Assessment for Seismic Reflection Scientific Research Surveys During 2014 and 2015 in Support of Mapping the U.S. Atlantic Seaboard Extended Continental Margin and Investigating Tsunami Hazards,” prepared by RPS Evan-Hamilton, Inc., in association with YOLO Environmental, Inc., GeoSpatial Strategy Group, and Ecology and Environment, Inc., on behalf of USGS. The EA analyzes the direct, indirect, and cumulative environmental impacts of the proposed specified activities on marine mammals including those listed as threatened or endangered under the ESA. Prior to making a final decision on the IHA application, NMFS would either prepare an independent EA, or, after review and evaluation of the USGS EA for consistency with the regulations published by the Council of Environmental Quality (CEQ) and NOAA Administrative Order 216–6, Environmental Review Procedures for Implementing the National Environmental Policy Act, adopt the EA and make a decision of whether or not to issue a Finding of No Significant Impact (FONSI).
As a result of these preliminary determinations, NMFS proposes to issue an IHA to USGS for conducting the high-energy marine seismic survey in the northeast Atlantic Ocean off the Eastern Seaboard, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided below:
The NMFS hereby authorizes the U.S. Geological Survey, Pacific Coastal and Marine Geology Science Center, Mail Stop 999, 345 Middlefield Road, Menlo Park, California 94025, Lamont-Doherty Earth Observatory of Columbia University, P.O. Box 1000, 61 Route 9W, Palisades, New York 10964–8000, and National Science Foundation, Division of Ocean Sciences, 4201 Wilson Boulevard, Suite 725, Arlington, Virginia 22230 (herein referred to USGS) under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1371(a)(5)(D)), to harass small numbers of marine mammals incidental to a high-energy marine geophysical (seismic) survey conducted by the R/V
1. This Authorization is valid from August 15, 2014 through August 14, 2015.
2. This Authorization is valid only for the
The proposed activities for 2014 will generally occur within the outer portions of the study area. The proposed activities for 2015 will in-fill more of the study area. Water depths range from approximately 1,450 to 5,400 m (see Figure 1 and 2 of the IHA application); no survey lines will extend to water depths less than 1,000 m. The tracklines proposed for both 2014 and 2015 would be in International Waters (approximately 80% in 2014 and 90% in 2015) and in the U.S. EEZ, as specified in USGS's Incidental Harassment Authorization application and the associated USGS Environmental Assessment.
3.
(a) The incidental taking of marine mammals, by Level B harassment only, is limited to the following species in the waters of the northeast Atlantic off the Eastern Seaboard:
(i)
(ii)
(iii) If any marine mammal species are encountered during seismic activities that are not listed in Table 4 for authorized taking and are likely to be exposed to sound pressure levels (SPLs) greater than or equal to 160 dB re 1 μPa (rms), then the USGS must alter speed or course or shut-down the airguns to avoid take.
(b) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in Condition 3(a) above or the taking of any kind of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.
4. The methods authorized for taking by Level B harassment are limited to the following acoustic sources without an amendment to this Authorization:
(a) A 36 airgun array with a total volume of 6,600 cubic inches (in
(b) A multi-beam echosounder; and
(c) A sub-bottom profiler.
5. The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the Office of Protected Resources, National Marine Fisheries Service (NMFS), at 301–427–8401 and/or by email to
6.
The USGS is required to implement the following mitigation and monitoring requirements when conducting the specified activities to achieve the least practicable impact on affected marine mammal species or stocks:
(a) Utilize two, NMFS-qualified, vessel-based PSVO (except during meal times and restroom breaks, when at least one PSVO shall be on watch) to visually watch for and monitor marine mammals near the seismic source vessel during daytime airgun operations (from nautical twilight-dawn to nautical twilight-dusk) and before and during ramp-ups of airguns day or night.
(i) The
(ii) PSVOs shall have access to reticle binoculars (7 x 50 Fujinon), big-eye binoculars (25 x 150), optical range finders, and night vision devices.
(iii) PSVO shifts shall last no longer than 4 hours at a time.
(iv) When feasible, PSVOs shall also make observations during daytime periods when the seismic system is not operating for comparison of animal abundance and behavioral reactions during, between, and after airgun operations.
(v) PSVOs shall conduct monitoring while the airgun array and streamer(s) are being deployed or recovered from the water.
(b) PSVOs shall record the following information when a marine mammal is sighted:
(i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc., and including responses to ramp-up), and behavioral pace; and
(ii) Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or shut-down), Beaufort sea state and wind force, visibility, and sun glare; and
(iii) The data listed under Condition 6(c)(ii) shall also be recorded at the start and end of each observation watch and during a watch whenever there is a change in one or more of the variables.
(c) Utilize the PAM system, to the maximum extent practicable, to detect and allow some localization of marine mammals around the
(d) Do and record the following when an animal is detected by the PAM:
(i) Notify the on-duty PSVO(s) immediately of the presence of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required:
(ii) Enter the information regarding the vocalization into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position, and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information. The acoustic detection can also be recorded for further analysis.
(e) Establish a 160 dB re 1 µPa (rms) buffer zone as well as 180 and 190 dB re 1 µPa (rms) exclusion zone for marine mammals before the 2-string airgun array (6,600 in
(f) Visually observe the entire extent of the exclusion zone (180 dB re 1 μPa [rms] for cetaceans; see Table 1 [above] for distances) using NMFS-qualified PSVOs, for at least 30 minutes prior to starting the airgun array (day or night).
(i) If the PSVO observes a marine mammal within the exclusion zone, USGS must delay the seismic survey until the marine mammal(s) has left the area. If the PSVO sees a marine mammal that surfaces, then dives below the surface, the PSVO shall wait 30 minutes. If the PSVO sees no marine mammals during that time, he/she should assume that the animal has moved beyond the exclusion zone.
(ii) If for any reason the entire radius cannot be seen for the entire 30 minutes (i.e., rough seas, fog, darkness), or if marine mammals are near, approaching, or within the exclusion zone, the airguns may not resume airgun operations.
(iii) If one airgun is already running at a source level of at least 180 dB re 1 μPa (rms), USGS may start the second airgun, and subsequent airguns, without observing the entire exclusion zone for 30 minutes prior, provided no marine mammals are known to be near the exclusion zone (in accordance with Condition 6[h] below).
(g) Ramp-up procedures at the start of seismic operations or after a shut-down—Implement a “ramp-up” procedure when starting-up at the beginning of seismic operations or any time after the entire array has been shut-down for more than 10 minutes, which means starting with the smallest airgun first and adding airguns in a sequence such that the source level of the array shall increase in steps not exceeding approximately 6 dB per 5-minute period. During ramp-up, the PSVOs shall monitor the 180 and 190 dB exclusion zone for cetaceans and pinnipeds, respectively, and if marine mammals are sighted within or about to enter the relevant exclusion zone, a power-down, or shut-down shall be implemented as though the full array were operational. Therefore, initiation of ramp-up procedures from a shut-down or at the beginning of seismic operations requires that the PSVOs be able to view the full exclusion zone as described in Condition 6(m) (below).
(h) Power-down the airgun(s) if a marine mammal is detected within, approaches, or enters the relevant exclusion zone (as defined in Table 1, above). A power-down means reducing the number of operating airguns to a single operating 40 in
(i) Following a power-down, if the marine mammal approaches the small
(j) Following a power-down and subsequent animal departure, the airgun operations may resume at full power. Initiation requires that PSVOs can effectively monitor the full exclusion zones described Condition 6(g). If the PSVO(s) sees a marine mammal within or about to enter the relevant zones, when a course/speed alteration, power-down, or shut-down will be implemented.
(k) Shut-down the airgun(s) if a marine mammal is detected within, approaches, or enters the relevant exclusion zone (as defined in Table 1, above). A shut-down means all operating airguns are shut-down (i.e., turned off).
(l) Following a shut-down, if the PSVO has visually confirmed that the animal has departed the relevant exclusion zone (and is not likely to return) within a period less than or equal to 10 minutes after the shut-down, the airgun operations may resume at full power. If the PSVO has not observed the marine mammal(s) exiting the exclusion zone, the airgun operations shall not resume for 15 minutes for species with shorter dive durations (small odontocetes) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales). Following a shut-down, the
(m) Alter speed or course during seismic operations if a marine mammal, based on its position and relative motion, appears likely to enter the relevant exclusion zone. If speed or course alteration is not safe or practicable, or if after alteration the marine mammal still appears likely to enter the exclusion zone, further mitigation measures, such as a power-down or shut-down, shall be taken.
(n) Marine seismic surveys may continue into night and low-light hours if such segment(s) of the survey is initiated when the entire relevant exclusion zones are visible and can be effectively monitored.
(o) No initiation of airgun array operations is permitted from a shut-down position at night or during low-light hours (such as in dense fog or heavy rain) when the entire relevant exclusion zone cannot be effectively monitored by the PSO(s) on duty.
(p) Use of small-volume airgun (i.e., mitigation airgun) during turns and maintenance shall be operated at approximately one shot per minute and would not be operated for longer than three hours in duration. During turns or brief transits between seismic tracklines, one airgun will continue operating.
(q) If a North Atlantic right whale (
(r) Concentrations of humpback (
The USGS is required to:
(a) Submit a draft comprehensive report on all activities and monitoring results to the Office of Protected Resources, NMFS, within 90 days of the completion of the
(i) Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all seismic operations and marine mammal sightings.
(ii) Species, number, location, distance from the vessel, and behavior of any marine mammals, as well as associated seismic activity (number of power-downs and shut-downs), observed throughout all monitoring activities.
(iii) An estimate of the number (by species) of marine mammals that: (A) Are known to have been exposed to the seismic activity (based on visual observation) at received levels greater than or equal to 160 dB re 1 μPa (rms) and/or 180 dB re 1 μPa (rms) for cetaceans and 190 dB re 1 μPa (rms) for pinnipeds with a discussion of any specific behaviors those individuals exhibited; and (B) may have been exposed (based on modeled values for the 36 airgun array) to the seismic activity at received levels greater than or equal to 160 dB re 1 μPa (rms) and/or 180 dB re 1 μPa (rms) for cetaceans and 190 dB re 1 μPa (rms) for pinnipeds with a discussion of the nature of the probable consequences of that exposure on the individuals that have been exposed.
(iv) A description of the implementation and effectiveness of the: (A) Terms and Conditions of the Biological Opinion's Incidental Take Statement (ITS); and (B) mitigation measures of the Incidental Harassment Authorization. For the Biological Opinion, the report shall confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness, for minimizing the adverse effects of the action on Endangered Species Act-listed marine mammals.
(b) Submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, within 30 days after receiving comments from NMFS on the draft report. If NMFS decides that the draft report needs no comments, the draft report shall be considered to be the final report.
8. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury (Level A harassment), serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), USGS shall immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401 and/or by email to
(a) Time, date, and location (latitude/longitude) of the incident; the name and type of vessel involved; the vessel's speed during and leading up to the incident; description of the incident; status of all sound source use in the 24 hours preceding the incident; water depth; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); description of marine mammal observations in the 24 hours preceding the incident; species identification or description of the animal(s) involved; the fate of the animal(s); and photographs or video footage of the animal (if equipment is available).
USGS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with USGS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. USGS may not resume their activities until notified by NMFS via letter, email, or telephone.
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), USGS will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401, and/or by email to
In the event that USGS discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), USGS shall report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301–427–8401, and/or by email to
9. USGS is required to comply with the Terms and Conditions of the ITS corresponding to NMFS's ESA Biological Opinion issued to both USGS and NMFS's Office of Protected Resources, Permits and Conservation Division.
10. A copy of this Authorization and the ITS must be in the possession of all contractors and PSOs operating under the authority of this Incidental Harassment Authorization.
NMFS requests comments on our analysis, the draft authorization, and any other aspect of the notice of proposed IHA for USGS's proposed marine seismic survey in the Atlantic Ocean off the Eastern Seaboard. Please include with your comments any supporting data or literature citations to help inform our final decision on USGS's request for an MMPA authorization. Concurrent with the publication of this notice in the