Forest Service
Census Bureau
Industry and Security Bureau
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Western Area Power Administration
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
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Agency for Toxic Substances and Disease Registry
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Internal Revenue Service
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Airbus Model A319–115, A319–133, A320–214, A320–232, and A320–233 airplanes. This AD requires repetitive detailed inspections of the outboard main landing gear (MLG) support rib lower flange fasteners for discrepancies, and corrective actions if necessary. This AD was prompted by reports of failure of certain fasteners on the MLG support rib lower flange. We are issuing this AD to detect and correct discrepancies of the fasteners at the outboard MLG support rib lower flange, which could result in an airplane not meeting its maximum loads expected in service. This condition could result in structural failure.
This AD becomes effective February 24, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 6, 2015 (80 FR 3155, January 22, 2015).
We must receive comments on this AD by March 26, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone 425–227–1405; fax 425–227–1149.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2014–0270R1, dated December 15, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Airbus Model A319–115, A319–133, A320–214, A320–232, and A320–233 airplanes. The MCAI states:
During production of wings, a number of taperlok fasteners were found failed after installation. The fasteners in question are located at the bottom skin of the Main Landing Gear (MLG) reinforcing plate, wing skin and Gear Support Rib 5 lower flange.
This condition, if not detected and corrected could reduce the design margin of the structure [and could result in structural failure].
Based on the results of the preliminary investigation, this affects only certain A319 and A320 aeroplane Models delivered since January 2014. A321 aeroplanes are not affected, as the wing assembly is done using parallel fasteners. A318 aeroplanes are not affected, since none have been delivered since January 2014.
Prompted by these findings, EASA issued Emergency AD 2014–0270–E [dated December 11, 2014] to require repetitive inspections of the bottom skin taperlok fasteners at the MLG Rib 5 footprint location and, depending on findings, accomplishment of applicable corrective action(s).
Since that [EASA] AD was issued, operator comments have indicated the need for clarification, as well as correction.
For the reason described above, this [EASA] AD is revised to add Notes for information and to correct paragraphs (1) and (2) of the [EASA] AD.
This [EASA] AD is still considered to be an interim action and further AD action may follow.
Required actions include repetitive detailed visual inspections to detect discrepancies (broken or missing fastener tails or nuts) of the outboard MLG support rib lower flange location fasteners, and, depending on findings, accomplishment of applicable corrective action(s). Corrective actions include fastener replacement. You may examine the MCAI on the Internet at
On January 7, 2015, the FAA issued AD 2014–26–53, Amendment 39–18068 (80 FR 3155, January 22, 2015), for certain Airbus Model A319–115, A319–133, A320–214, A320–232, and A320–233 airplanes. That AD requires
The preamble to AD 2014–26–53, Amendment 39–18068 (80 FR 3155, January 22, 2015), explains that EASA AD 2014–0270R1, dated December 15, 2014, specifies to do repetitive detailed visual inspections of the outboard MLG support rib lower flange fasteners and nuts. However, those inspections were not required by AD 2014–26–53 because the specified compliance time for those actions was four months, and the FAA was considering further rulemaking to require those inspections. We now have determined that further rulemaking is indeed necessary, and this AD follows from that determination.
This new AD applies to the same airplane models as AD 2014–26–53, Amendment 39–18068 (80 FR 3155, January 22, 2015), but requires repetitive detailed visual inspections of the outboard MLG support rib lower flange fasteners for discrepancies (broken or missing fastener tails or nuts) and fastener replacement if applicable.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.
In addition to specifying detailed visual inspections of the outboard MLG support rib lower flange fasteners for discrepancies, EASA Airworthiness Directive 2014–0270 R1, dated December 15, 2014, specifies to do repetitive detailed visual inspections of the external surface of the left and right lower skin to detect missing or migrating fasteners, and detailed inspections of the inboard MLG support rib lower flange to detect any missing or broken nuts or fastener tails; and corrective actions, if necessary. However, these inspections are not required by this AD. Those actions are required by AD 2014–26–53, Amendment 39–18068 (80 FR 3155, January 22, 2015).
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because failure of more than two fasteners at the outboard MLG support rib lower flange could result in an airplane not meeting its maximum loads expected in-service. This condition could result in failure of the structure. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 80 airplanes of U.S. registry.
We also estimate that it will take about 1 work-hour 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 this AD on U.S. operators to be $6,800, or $85 per product.
In addition, we estimate that any necessary follow-on actions will take about 3 work-hours and require parts costing $400 per fastener, for a cost of $655 per fastener replacement. We have no way of determining the number of aircraft that might 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 that 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.
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 becomes effective February 24, 2015.
None.
This AD applies to Airbus Model A319–115, A319–133, A320–214, A320–232, and A320–233 airplanes, certificated in any category, manufacturer serial numbers (MSN) 5817, 5826, 5837, 5848, 5855, 5864, 5875, 5886, 5896, and 5910, and MSNs 5918 and subsequent.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of failure of certain fasteners on the main landing gear (MLG) support rib lower flange. We are issuing this AD to detect and correct discrepancies of the fasteners at the outboard MLG support rib lower flange, which could result in an airplane not meeting its maximum loads expected in service. This condition could result in structural failure.
Comply with this AD within the compliance times specified, unless already done.
Within 4 months after the effective date of this AD, or within 4 months after the date of issuance of the original certificate of airworthiness or the original export certificate of airworthiness, or before further flight for any airplane that is not in operation for more than 4 months, whichever occurs latest: Do a detailed visual inspection of the left and right outboard MLG support rib lower flange to detect any discrepancy (broken or missing fastener tails or nuts), in accordance with Airbus Alert Operators Transmission (AOT) A57N006–14, Revision 00, dated December 4, 2014. Repeat the inspection thereafter at intervals not to exceed 4 months.
If, during any inspection required by paragraph (g) of this AD, any discrepancy is found on the left or right outboard MLG support rib lower flange: Before further flight, replace all affected fasteners on the affected side(s), in accordance with Airbus AOT–A57N006–14, Revision 00, dated December 4, 2014. Replacement of fasteners on an airplane does not constitute terminating action for the repetitive inspections required by paragraph (g) of this AD.
(1)
(2)
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014–0270R1, dated December 15, 2014, 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 this AD specifies otherwise.
(3) The following service information was approved for IBR on February 6, 2015 (80 FR 3155, January 22, 2015).
(i) Airbus Alert Operators Transmission A57N006–14, Revision 00, dated December 4, 2014.
(ii) Reserved.
(4) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(6) 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, DOT.
Final rule; technical amendment.
The FAA is correcting a final rule published on May 28, 2010. In that rule, the FAA amended its regulations by adding equipage requirements and performance standards for Automatic Dependent Surveillance—Broadcast (ADS–B) Out avionics on aircraft operating in Classes A, B, and C airspace, as well as other specified classes of airspace within the U.S. National Airspace System (NAS). This document corrects errors in regulatory provisions addressing ADS–B Out equipment and use.
Effective February 9, 2015.
For technical questions concerning this action, contact Robert F. Nichols, Jr., Surveillance Services Group Manager, AJM–23, Air Traffic Organization, Federal Aviation Administration, 600 Independence Avenue SW., Washington, DC 20591; telephone (202) 267–0629; email
For legal questions concerning this action, contact Lorelei Peter, Office of the Chief Counsel, AGC–200, Federal Aviation Administration, 800
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
Section 553(d)(3) of the Administrative Procedure Act requires that agencies publish a rule not less than 30 days before its effective date, except as otherwise provided by the agency for good cause found and published with the rule.
This document is correcting an error that is in 14 CFR 91.225, ADS–B Out equipment and use. This correction will not impose any additional restrictions on the persons affected by these regulations. Furthermore, any additional delay in making the regulations correct would be contrary to the public interest. Accordingly, the FAA finds that (i) public comment on these standards prior to promulgation is unnecessary, and (ii) good cause exists to make this rule effective in less than 30 days.
On May 28, 2010, the FAA published a final rule entitled, “Automatic Dependent Surveillance—Broadcast Out Performance Requirements To Support Air Traffic Control Service” (75 FR 30160).
In that final rule, the FAA established § 91.225, which provides the ADS–B equipment requirements necessary to operate in certain classes of airspace effective January 1, 2020. Under paragraph (a)(1) of that section and in order to operate an aircraft in Class A airspace, an aircraft must have installed equipment that “meets the requirements of TSO–C166b.” Under paragraph (b)(1) of that section, in order to operate an aircraft below 18,000 feet MSL and in identified airspace described subsequently in § 91.225, an aircraft must be equipped with equipment that “meets the requirements of TSO–C166b; or TSO–C154c . . .”. In reviewing these paragraphs, the FAA notes that the regulatory text implies that the equipment must meet all the requirements of the referenced TSOs. As the ADS–B Out rule is a performance-based rule, it was not the FAA's intent to arguably limit operators to only install equipment marked with a TSO in accordance with 14 CFR part 21, subpart O. The FAA's intent was to permit equipment that meets the performance requirements set forth in the referenced TSOs. Evidence of that intent is found in the Notice of Proposed Rulemaking (NPRM) for this rule. In the NPRM, the FAA proposed in § 91.225(a)(1) and (c)(1) that the equipment installed “Meets the performance requirements in TSO–C–166a” (72 FR 56947, 56971). The inadvertent removal of the word “performance” in the paragraphs implementing these provisions in the final rule was in error and resulted in confusion as to whether the regulation permits other than equipment marked with a TSO, provided that equipment met the specified performance requirements.
In order to address any confusion and clarify the equipage requirements permitted under this rule, the FAA is amending § 91.225 to insert text specifying the necessary performance requirements.
Because the changes in this technical amendment result in no substantive change, we find good cause exists under 5 U.S.C. 553(d)(3) to make the amendment effective in less than 30 days.
Air traffic control, Aircraft, Airports, Aviation safety.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506–46507, 47122, 47508, 47528–47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
(a) After January 1, 2020, and unless otherwise authorized by ATC, no person may operate an aircraft in Class A airspace unless the aircraft has equipment installed that—
(1) Meets the performance requirements in TSO–C166b, Extended Squitter Automatic Dependent Surveillance-Broadcast (ADS–B) and Traffic Information Service-Broadcast (TIS–B) Equipment Operating on the Radio Frequency of 1090 Megahertz (MHz); and
(2) Meets the requirements of § 91.227.
(b) After January 1, 2020, and unless otherwise authorized by ATC, no person may operate an aircraft below 18,000 feet MSL and in airspace described in paragraph (d) of this section unless the aircraft has equipment installed that—
(1) Meets the performance requirements in—
(i) TSO–C166b; or
(ii) TSO–C154c, Universal Access Transceiver (UAT) Automatic Dependent Surveillance-Broadcast (ADS–B) Equipment Operating on the Frequency of 978 MHz;
(2) Meets the requirements of § 91.227.
Bureau of the Census, Commerce.
Final rule.
The Bureau of the Census (Census Bureau) issues this final rule amending the Foreign Trade Regulations (FTR) to reflect changes related to the implementation of the International Trade Data System (ITDS) and subsequent changes to access the Electronic Export Information (EEI). The ITDS was established to eliminate redundant information requirements, efficiently regulate the flow of commerce, and to effectively enforce laws and regulations relating to international trade by establishing a
Dale C. Kelly, Chief, International Trade Management Division, U.S. Census Bureau, 4600 Silver Hill Road, Room 6K032, Washington, DC 20233–6700, by phone (301) 763–6937, by fax (301) 763–8835, or by email
The Census Bureau is responsible for collecting, compiling, and publishing export trade statistics for the United States under the provisions of Title 13, United States Code (U.S.C.), Chapter 9, Section 301. The Automated Export System (AES) is the primary instrument used for collecting export trade data, which are used by the Census Bureau for statistical purposes. Through the AES, the Census Bureau collects the Electronic Export Information (EEI), the electronic equivalent of the export data formerly collected on the Shipper's Export Declaration, reported pursuant to Title 15, Code of Federal Regulations (CFR), Part 30. The EEI consists of data elements set forth in 15 CFR 30.6 for an export shipment, and includes information such as the exporter's name, address and identification number, and detailed information concerning the exported product. Other agencies use the EEI for the purpose of enforcing U.S. export laws and regulations. The EEI is exempt from public disclosure unless the Secretary of Commerce determines under the provisions of Title 13, U.S.C., Chapter 9, Section 301(g) that such exemption would be contrary to the national interest.
The Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109–347) established the International Trade Data System (ITDS). Pursuant to Section 405(d) of that Act, the purpose of the ITDS is to eliminate redundant information requirements, efficiently regulate the flow of commerce, and to effectively enforce laws and regulations relating to international trade by establishing a single portal system for the collection and distribution of standard electronic import and export data required by all participating federal agencies. The AES will include export information collected under other federal agencies' authority, which is subject to those agencies' disclosure mandates. Access and use of EEI by other federal agencies will also increase under the ITDS.
In accordance with the interim final rule published on August 22, 2014, this rule clarifies the confidentiality provisions of the EEI by amending § 30.60 of the Foreign Trade Regulations. This revision will allow federal agencies with appropriate authority to access export data in the AES, and ensure consistency with the Executive Order of February 19, 2014, titled, “Streamlining the Export/Import Process for America's Businesses.” This rule will facilitate the legitimate sharing of export data consistent with the goals for the ITDS.
The Census Bureau received two comments on the interim final rule published in the
The major concerns were as follows:
1.
2.
The Census Bureau finds good cause pursuant to Title 5, United States Code (U.S.C.), 553 (b)(3)(B) to waive prior notice and opportunity for public comment, as contrary to the public interest. With the implementation of the International Trade Data System (ITDS), the Automated Export System (AES) will capture export information collected and used by other federal agencies under their authorities. The Census Bureau is undertaking this amendment in order to accurately reflect the authorized uses of Electronic Export Information (EEI) by other federal agencies resulting from the ITDS. In particular, this rule amends § 30.60 of the Foreign Trade Regulations to help ensure that federal agencies with appropriate authority can access export data in the AES, which will ensure the efficient and timely flow of exports as well as protect U.S. interests in export controls and enforcement. Additionally, the rule complies with the directives and timelines established by the Executive Order of February 19, 2014, titled “Streamlining the Export/Import Process for America's Businesses.” Allowing for a period of notice and comment may delay exports and make export control more difficult, both of which are contrary to public interest.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule will not have a significant impact on a substantial number of small entities.
The purpose and goal of this rule are explained in the preamble, and are not repeated here. This rule does not mandate any new filing requirements and does not directly impact any small or large entities. Rather, this rule's impact is largely on federal entities. Indeed, to the extent they will be indirectly impacted by this rule, small entities will see reduced burdens for exports because this rule creates a
This rule has been determined to be not significant for purposes of Executive Orders 12866 and 13563, and has been drafted according to the requirements of those Executive Orders. It has also been determined that this rule does not contain policies with federalism implications as that term is defined under Executive Order 13132.
This rule does not contain any information collection subject to the Paperwork Reduction Act (PRA). However, notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number.
Economic statistics, Exports, Foreign trade, Reporting, and recordkeeping requirements.
Accordingly, as discussed above, the interim final rule amending title 15, Code of Federal Regulations, part 30, which was published at 79 FR 49659 on August 22, 2014, is adopted as a final rule without change.
Securities and Exchange Commission.
Technical amendment.
The Securities and Exchange Commission (“SEC” or “Commission”) is making technical amendments to update control numbers assigned to information collection requirements of the Commission by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980.
Daniel K. Chang, Senior Counsel, at (202) 551–6792, Office of Regulatory Policy, Division of Investment Management, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–8549.
The Commission published a final rule at 76 FR 71872, on November 21, 2011, which rescinded rules and forms adopted under the Public Utility Holding Company Act (“PUHCA”),
The final rule contained a typographical error that prevented an amendment to the Code of Federal Regulations.
Administrative practice and procedure, Authority delegations (Government agencies), Classified information, Conflicts of interest, Government employees, Organization and functions (Government agencies).
For the reasons set out in the preamble, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
44 U.S.C. 3506; 44 U.S.C. 3507.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 3,770-acre “The Rocks
This final rule is effective March 11, 2015.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202–453–1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120–01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.
Part 4 of the TTB regulations (27 CFR part 4) authorizes the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Dr. Kevin R. Pogue, a professor of geology at Whitman College in Walla Walla, Washington, proposing the establishment of the “The Rocks District of Milton-Freewater” AVA in Umatilla County, Oregon, near the town of Milton-Freewater. The proposed AVA lies entirely within the Oregon portion of the Walla Walla Valley AVA (27 CFR 9.91), which covers portions of Walla Walla County, Washington and Umatilla County, Oregon. The Walla Walla Valley AVA is, in turn, entirely within the larger Columbia Valley AVA (27 CFR 9.74), which covers multiple counties in Washington and Oregon. The proposed AVA contains approximately 3,770 acres and has approximately 250 acres of commercially producing vineyards. The petition names 19 wine producers that have vineyards within the proposed AVA, and it notes that three of the 19 producers also have winery facilities within the proposed AVA.
According to the petition, the distinguishing feature of the proposed The Rocks District of Milton-Freewater AVA is its soil. Approximately 96 percent of the proposed AVA is covered with soil from the Freewater series, including Freewater very cobbly loam and Freewater gravelly silt loam. These soils contain large amounts of loose, uncemented gravel, cobbles, and boulders that form very deep layers. The rockiness of Freewater series soils prevents erosion and discourages rot and mildew by allowing water to drain freely. The depth of the soil allows roots to penetrate 30 feet or more before hitting a restrictive layer of bedrock or cemented soil. The numerous cobbles in the soil absorb and store solar radiation, which raises the soil and air temperatures and reduces the risk of frost damage in the late spring and early fall. Finally, soils of the Freewater series contain high amounts of calcium, titanium, and iron, which are important nutrients for vine growth.
By contrast, the soils surrounding the proposed The Rocks District of Milton-Freewater AVA are silt loams from the Walla Walla, Ellisforde, Yakima, Umapine, Hermison, Onyx, and Oliphan series. Cobbles are uncommon or entirely absent from these soils. The soils are also not as deep as soils of the Freewater series and are often underlain by dense, compacted layers of sand and silt called “Touchet beds.” The soils are also less resistant to erosion than Freewater series soils and contain lower levels of calcium, titanium, and iron.
TTB published Notice No. 142 in the
In Notice No. 142, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. In addition, TTB solicited comments on whether the geographic features of the proposed The Rocks District of Milton-Freewater AVA are so distinguishable from the established Walla Walla Valley AVA and Columbia Valley AVA that the proposed AVA should not be part of those AVAs. Additionally, TTB asked for comments from winemakers who produce wine made primarily from grapes grown within the proposed AVA but who would be ineligible to use the proposed AVA name because their wines are fully finished in facilities located in the nearby city of Walla Walla, Washington. The comment period closed on April 28, 2014.
In response to Notice No. 142, TTB received a total of 20 comments, all of which supported the establishment of The Rocks District of Milton-Freewater AVA. Commenters included local vineyard owners and winemakers, a wine reporter, and a regional alliance of winemakers. TTB received no comments opposing the establishment of The Rocks District of Milton-Freewater AVA. TTB also did not receive any comments in response to its question of whether the proposed The Rocks District of Milton-Freewater AVA is so distinguishable from the established Walla Walla Valley and Columbia Valley AVAs that the proposed AVAs should not be part of the established AVAs.
One of the comments (comment 14) was from the owner of a vineyard and winery located within the proposed AVA. Although the commenter expressed support for the establishment of the proposed AVA, he also stated his concern regarding TTB's requirement that AVA boundaries be drawn using features found on USGS topographic maps. The commenter stated that because only USGS maps were used to draw the boundary, the proposed AVA contains some soil that is not of the Freewater series, which is the distinguishing feature of the proposed AVA, and also omits small pockets of land containing Freewater series soils. The commenter suggested that TTB amend its regulations to allow AVA boundaries to be drawn using “geologic or soils series contacts on published geologic and soil maps.”
Section 9.12(a)(4) of the TTB regulations (27 CFR 9.12(a)(4)) requires proposed AVA boundaries to be drawn using features found on USGS maps, such as roads, elevation contours, range and township lines, rivers, and mountain peaks. TTB's requirement mandating the use of this type of map to mark AVA boundaries facilitates the establishment of new AVAs that share a concurrent boundary, or are located entirely within or entirely overlap an established AVA, by ensuring that the features used to draw the boundary of one AVA also appear on the maps used to draw the boundary of the other. For example, it would be difficult to determine the exact location of a new AVA in relation to an established AVA if the new AVA's boundaries followed elevation contours and roads found on a USGS map, but the established AVA's boundaries were marked on a soil survey map that did not include elevation contours or roads. Furthermore, amending the regulation requiring the use of USGS maps for AVA boundary descriptions is outside the scope of the notice of proposed rulemaking to establish The Rocks District of Milton-Freewater AVA and would require a separate rulemaking. Therefore, TTB is not taking any action on this comment in this final rule.
Of the 20 comments received in response to Notice No. 142, 16 comments addressed the issue of wines fully finished in the State of Washington from grapes grown primarily within the proposed The Rocks District of Milton-Freewater AVA (comments 2, 3, 5–11, 13, and 15–20). Section 4.25(e)(3)(iv) of TTB regulations (27 CFR 4.25(e)(3)(iv)) requires wines labeled with an AVA appellation of origin to be “fully finished within the State, or one of the States, within which the labeled viticultural area is located.” Currently, there are individuals who use facilities in the nearby city of Walla Walla, Washington, to fully finish wine made primarily from grapes grown within the proposed AVA, in part because of a lack of custom crush or alternating proprietorship facilities nearby in Oregon. Additionally, several winery owners located in Walla Walla stated that they also own vineyards within the proposed AVA and currently produce wines from those grapes in their Walla Walla facilities. Under the current TTB regulations, such Washington-produced wines would be eligible to use the “Walla Walla Valley” or “Columbia Valley” AVA names, due to the proposed AVA's location within both of those multistate AVAs, but the wines would not be eligible to use “The Rocks District of Milton-Freewater” as an appellation of origin because the wine is finished in Washington, outside the state in which the AVA is located.
Each of the 16 comments stated that TTB should amend its regulations to allow wines produced primarily from grapes grown within the proposed AVA to be labeled with “The Rocks District of Milton-Freewater” AVA name even if the wines are produced in facilities in Washington. Of these commenters, 9 were from individuals who specifically stated that they own vineyards within the proposed AVA but own or use facilities in Walla Walla for the production of wine (comments 5, 6, 7, 9, 10, 11, 13, 18, and 19). Four comments (comments 2, 3, 8, and 15) were from individuals who would not be affected directly by the TTB restriction but still expressed support for amending the regulations in order to benefit other growers and winemakers who may be impacted. An additional comment (comment 16) was from the Walla Walla Valley Wine Alliance, on behalf of its members in both Washington and Oregon. Another comment was from the editor and publisher of Washington Wine Report (comment 17). The final comment (comment 20) was submitted on behalf of a California-based winery and a Washington-based winery, both of which source grapes from the proposed AVA.
All 16 of the comments essentially stated that it is unreasonable for TTB to allow wine made with grapes grown within the proposed AVA and fully finished in Washington to be labeled with the “Walla Walla Valley” or “Columbia Valley” viticultural areas as appellations of origin, but not with “The Rocks District of Milton-Freewater.” One commenter (comment 3) stated that the current TTB regulations would “jeopardize the vineyard owners' ability to sell their grapes as the number of winemakers within a reasonable range who finish their wines in Oregon is limited.” Another commenter (comment 6) believes the regulations should be changed because “almost all of the grapes grown [within the proposed AVA] are used by Washington wineries . . . ,” meaning that very few wines would be eligible to use the proposed AVA name as an appellation of origin. The Walla Walla Valley Wine Alliance (comment 16) also notes that “[w]ines made in Washington from grapes sourced within the proposed AVA constitute a significant percentage of the
A small wine producing company that owns a vineyard within the proposed AVA states that it uses a custom crush facility in the city of Walla Walla because “[t]his is a very practical business model for us because of the high cost of building a facility and the concentration of resources * * * in Walla Walla” (comment 13). The company goes on to say that the inability to use “The Rocks District of Milton-Freewater” as an appellation of origin for their wines “will be confusing to consumers” because wine that is, in the commenter's words, “100% `The Rocks District' wine” will have to be labeled as “Walla Walla Valley” or “Columbia Valley.” Because a viticultural area designation is meant to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase, the commenter believes that the company's use of “The Rocks District of Milton-Freewater” as an appellation of origin on their wines will further both aforementioned goals.
Finally, the editor and publisher of the Washington Wine Report (comment 17) offered a scenario to demonstrate the “contradictions” inherent in the current TTB regulations. He notes that “a winery could source grapes from The Rocks District and then drive 450 miles down to the Rogue Valley [in southwestern Oregon] and label the wines as from The Rocks District of Milton-Freewater.” He continues, “However, a winery would not be able to truck the grapes 10 miles north to Walla Walla and do the same . . . . This defies logic and surely was not the intention of this regulation.”
TTB believes that amending the regulations in 27 CFR 4.25(e)(3)(iv) to allow AVA appellations of origin on labels of wine made outside the State in which the AVA is located would require a notice of proposed rulemaking and public comment period. Although Notice No. 142 requested comments concerning the appellation of origin regulations, the proposed rule did not formally propose any specific changes to those regulations. Additionally, any changes to the regulations concerning the use of AVA names as appellations of origin would apply not only to persons wanting to use “The Rocks District of Milton-Freewater” as an appellation of origin. Therefore, TTB is not proposing to make any changes to the regulation in this final rule.
However, TTB believes that the number of comments submitted in response to Notice No. 142 indicates that there is at least regional support for amending the regulations regarding the use of AVA names as appellations of origin. Therefore, elsewhere in this issue of the
After careful review of the petition and the comments received in response to Notice No. 142, TTB finds that the evidence provided by the petitioner supports the establishment of The Rocks District of Milton-Freewater AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and part 4 of the TTB regulations, TTB establishes the “The Rocks District of Milton-Freewater” AVA in Umatilla County, Oregon, effective 30 days from the publication date of this document.
TTB has also determined that The Rocks District of Milton-Freewater AVA will remain part of both the established Walla Walla Valley and Columbia Valley AVAs. As discussed in Notice No. 142, the elevations, topography, growing season, and climate of The Rocks District of Milton-Freewater AVA are similar to those of both the Walla Walla Valley and Columbia Valley AVAs. However, approximately 96 percent of The Rocks District of Milton-Freewater AVA is covered by heavily cobbled Freewater series soils, which are found only in miniscule amounts elsewhere in the Walla Walla Valley and Columbia Valley AVAs, thus distinguishing the proposed AVA from the existing, surrounding AVAs.
See the narrative description of the boundary of the AVA in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and they are listed below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
With the establishment of this AVA, its name, “The Rocks District of Milton-Freewater,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). TTB has also determined that the phrase “The Rocks of Milton-Freewater” has viticultural significance in relation to the AVA. The text of the regulation clarifies this point. Consequently, wine bottlers using the name “The Rocks District of Milton-Freewater” or “The Rocks of Milton-Freewater” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.
The establishment of The Rocks District of Milton-Freewater AVA will not affect any existing AVA, and any bottlers using “Walla Walla Valley” or “Columbia Valley” as an appellation of origin or in a brand name for wines made from grapes grown within the Walla Walla Valley or Columbia Valley AVAs will not be affected by the establishment of this new AVA. The establishment of The Rocks District of Milton-Freewater AVA will allow vintners to use “The Rocks District of Milton-Freewater,” “Walla Walla Valley,” and “Columbia Valley” as appellations of origin for wines made from grapes grown within The Rocks District of Milton-Freewater AVA, if the wines meet the eligibility requirements for the appellation.
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other
It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Milton-Freewater, Oreg., 1964; and
(2) Bowlus Hill, Oreg., 1964; photoinspected 1976.
(c)
(1) The beginning point is found on the Milton-Freewater map at the intersection of an unnamed medium-duty road known locally as Freewater Highway (State Route 339) and an unnamed light-duty road known locally as Crockett Road, section 26, T6N/R35E. From the beginning point, proceed east-southeasterly in a straight line for 0.8 mile to the intersection of State Highway 11 (Oregon-Washington Highway) and an unnamed light-duty road known locally as Appleton Road, section 25, T6N/R35E; then
(2) Proceed southeasterly in a straight line for 1.05 miles, crossing onto the Bowlus Hill map, to the intersection of three unnamed light-duty roads known locally as Grant Road, Turbyne Road, and Pratt Lane on the common boundary between section 36, T6N/R35E, and section 31, T5N/R36E; then
(3) Proceed southwesterly in a straight line for 1.1 miles, crossing back onto the Milton-Freewater map, to the intersection of the Union Pacific railroad tracks with the Walla Walla River, section 1, T5N/R35E; then
(4) Proceed southwesterly and then west-northwesterly along the Union Pacific railroad tracks for 1.2 miles to the intersection of the railroad tracks with the 980-foot elevation contour line, approximately 0.15 mile west of Lamb Street, section 2, T5N/R35E; then
(5) Proceed west-northwesterly in a straight line for 2.25 miles to the intersection of the 840-foot elevation contour line and an unnamed light-duty road known locally as Lower Dry Creek Road, section 33, T6N/R35E; then
(6) Proceed northwesterly in a straight line for 0.8 mile to the intersection of the 800-foot elevation contour line with an unnamed light-duty road running north-south in section 32, T6N/R35E; then
(7) Proceed easterly in a straight line for 0.9 mile to the intersection of the 840-foot elevation contour line with the Hudson Bay Canal, section 33, T6N/R35E; then
(8) Proceed due north in a straight line for 0.25 mile to the line's intersection with Sunnyside Road, section 33, T6N/T35E; then
(9) Proceed northeasterly in a straight line for 0.5 mile to the intersection of the 840-foot elevation contour line with an unnamed medium-duty road known locally as State Highway 332 (Umapine Highway), eastern boundary of section 28, R6N/T35E; then
(10) Proceed east-northeasterly in a straight line for 0.3 mile to the intersection of three unnamed light-duty roads known locally as Triangle Road, Hodgen Road, and Appleton Road, section 27, T6N/R35E; then
(11) Proceed east-northeasterly in a straight line for 1.25 miles, returning to the beginning point.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Burlington Northern Santa Fe Railway Bridge, also known as the St. Johns RR Bridge, across the Willamette River, mile 6.9, at Portland, OR. The deviation is necessary to facilitate installation of new rail joints. This deviation allows the bridge to remain in the closed to navigation position during maintenance activities.
This deviation is effective from 7 a.m. on February 12, 2015 to noon on February 13, 2015.
The docket for this deviation, [USCG–2015–0050] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Coast Guard Thirteenth District; telephone 206–220–7282, email
Burlington Northern Santa Fe (BNSF) Railway
Vessels able to pass through the bridge in the closed positions may do so at any time. The BNSF Railway Bridge will not be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Arizona State Implementation Plan (SIP) concerning the Nogales fine particle (PM
This rule will be effective on March 11, 2015.
EPA has established docket number EPA–R09–OAR–2014–0450 for this action. In most cases, documents in the docket for this action are available electronically at
Jerry Wamsley, EPA Region IX, (415) 947–4111,
Throughout this document, “we,” “us,” and “our” refer to EPA.
On September 2, 2014, EPA proposed to approve and incorporate into the Arizona State Implementation Plan (SIP) the PM
We proposed to approve this revision to the Arizona SIP because we determined that it complied with the relevant CAA requirements. EPA's requirements for an emissions inventory for the PM
Our proposed action provides more information on Arizona's PM
EPA provided a 30-day public comment period as part of our proposed action on the 2008 and 2010 Nogales area PM
EPA is taking final action to approve the 2008 and 2010 Nogales nonattainment area PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves these emissions inventories as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
This SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 10, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Ammonia, Volatile organic compounds.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(164) A plan revision was submitted on September 6, 2013 by the Governor's Designee.
(i) [Reserved]
(ii) Additional materials.
(A) Arizona Department of Environmental Quality.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule; corrections.
DoD, GSA, and NASA are issuing corrections to FAR Case 2013–001; Ending Trafficking in Persons (Item
Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–80; FAR Case 2013–001; Corrections.
In rule FR Doc. 2015–01524 published in the
1. On page 4990, in the first column, lines 7, 11, 13, 19, 21, 25, 30, 32, 54, 60, and 66, correct “(March 2, 2015)” to read “(Mar 2015)” (11 times).
2. On page 4990, in the second column, line 41, correct “(March 2, 2015)” to read “(Mar 2015).
3. On page 4992, in the first column, Alternate I, correct “(March 2, 2015)” to read “(Mar 2015)”.
4. On page 4992, in the first column, section 52.222–56, line 6, correct “(March 2, 2015)” to read “(Mar 2015)”.
5. On page 4992, in the second column, section 52.244–6, lines 4, 10, and 12, correct “(March 2, 2015)” to read “(Mar 2015)”.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule; correction.
DoD, GSA, and NASA are issuing a correction to FAR Case 2014–008; Management and Oversight of the Acquisition of Services (Item II), which was published in the
Mr. Michael O. Jackson, Procurement Analyst, at 202–208–4949, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–80; FAR Case 2014–008; Correction.
In rule FR Doc. 2015–01525 published in the
On page 4993, in the third column, line 22, correct “Mar 2015” to read “(Mar 2015)”.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule; corrections.
DoD, GSA, and NASA are issuing corrections to the Technical Amendments; (Item III), which was published in the
The Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202–501–4755, for information pertaining to status or publication schedules. Please cite FAC 2005–80, Technical Amendments; Corrections.
In rule FR Doc. 2015–01526 published in the
1. On page 4994, in the second column, line 12, correct “(Jan 2014)” to read “(Mar 2015)”.
2. On page 4994, in the second column, line 43, correct “(Jan 2015)” to read “(Mar 2015)”.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Department of State.
Final rule.
The Department of State (DoS) is making technical amendments to the Department of State Acquisition Regulation (DOSAR) to provide needed editorial changes, updating procedures and terminology, and aligning the DOSAR with changes to the Federal Acquisition Regulation (FAR).
This rule is effective on February 9, 2015.
Ms. Ella Ramirez, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone 703–516–1693.
This rulemaking is necessary to update
The amendments being made in this rule are all either corrections of typographical errors, alignments of wording/titling/numbering with the FAR, re-numbering/relocating without substantive change, changes in delegated authority, incorporation of agency procedural guidance into the CFR, or other minor editorial adjustments without substantive change.
The changes being made by this rule are:
The Department is publishing this rule as a final rule, in accordance with the “good cause” provision of 5 U.S.C. 553(b). The Department finds that, since the amendments in this rule are merely technical in nature or address the internal operating procedures of the agency, public comment is unnecessary. For the same reason, the effective date of this rulemaking is the date of publication, in accordance with 5 U.S.C. 553(d).
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This determination was based on the fact that the amendments in this rule are merely technical in nature, or consist of internal operating procedures of the agency, and they do not have any cost or administrative impact on offerors or contractors. Thus, it was concluded that the rule will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.
This rule is not a major rule as defined by the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 801
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 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 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866.
In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of updating this rule outweigh any costs, which the Department assesses to be minimal.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the
The rule imposes no new or revised information collections under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).
Administrative practice and procedure, Government procurement.
For the reasons stated in the preamble, the Department of State amends 48 CFR chapter 6 as follows:
22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1.
The Paperwork Reduction Act of 1980 (44 U.S.C. 3501–3520) requires that Federal agencies obtain approval from the Office of Management and Budget before collecting information from ten (10) or more members of the public. Individuals are not required to respond to information collection unless the OMB number and burden estimate information is provided. Accordingly, the information and recordkeeping requirements contained in this regulation have been approved by OMB under OMB Control Number 1405–0050. The information and recordkeeping requirements for Form DS–4053,
(a) The Assistant Secretary of State for Administration is the agency head for the purposes of FAR 1.301. The Assistant Secretary of State for Administration redelegated to the Procurement Executive the authority to prescribe, promulgate, and amend DOS acquisition policies, rules, and regulations.
(b) At posts where Joint Administrative Offices have been formed and DOS is the procurement agency, the FAR and DOSAR apply to all administrative and technical support acquisitions.
The revisions and addition read as follows:
(b) * * *
(5)
(8)
(i) RPSO Frankfurt in conjunction with Consulate General Frankfurt; and
(ii) RPSO Florida in conjunction with the Florida Regional Center.
(c)
(2) If the statute or current practice of the requiring office does not specify a particular format, use the following format.
(3) The determination may be made for an individual acquisition or on a class basis, as appropriate. The Contracting Officer must ensure that the proper official makes the determination in question. There may already be a Department of State delegation of
(b)
(2)(i) Unauthorized commitments not exceeding $1,000. The head of the contracting activity is delegated the authority to serve as the ratifying official for unauthorized commitments not exceeding $1,000, including unauthorized commitments from other agencies where a DOS employee serves as the contracting officer for that action. The head of the contracting activity may refer any actions not exceeding $1,000 to the DOS Procurement Executive for ratification if he or she so chooses.
(ii) Unauthorized commitments exceeding $1,000. All DOS unauthorized commitments in excess of $1,000 shall be submitted to the DOS Procurement Executive for ratification. Unauthorized commitments in excess of $1,000 from other agencies may be referred to the other agency's representative at post for resolution in accordance with that agency's ratification process.
(3)
(4)
(a)(1) The person who made the unauthorized commitment shall submit all records and documents concerning the unauthorized commitment to the contracting officer assigned the ratification action. That person shall provide a complete written, signed statement of the facts, including why normal acquisition procedures were not followed; a statement justifying a sole source acquisition (Justification for Other Than Full and Open Competition) if the unauthorized commitment exceeds $100,000; why and how the vendor was selected; a list of other sources considered; a description of work or products; a statement regarding the status of performance; an estimated or agreed price; certified funding citations; a statement as to why he/she should not be personally liable for the cost,
(2) When the person who made the unauthorized contractual commitment is no longer available to attest to the circumstances of the unauthorized commitment, an officer from the responsible office shall accomplish the requirements of this paragraph; the statement shall identify the individual responsible for the unauthorized commitment.
(3) In addition, a cognizant management official from the office that employed the individual who made the unauthorized commitment at the time the unauthorized commitment was made shall provide a statement detailing actions that he/she will take to ensure that such commitments will not occur again under the same or similar circumstances.
(4) This statement shall be cleared by the Executive Director of the Bureau that employs (or employed) the person who made the unauthorized commitment.
(b) The contracting officer assigned the ratification action shall prepare and execute a recommendation to the ratifying official. The contracting officer shall either recommend that the ratifying official approve and ratify the unauthorized commitment; or, disapprove the ratification of the unauthorized commitment.
(1) The recommendation shall include the facts and circumstances of the unauthorized commitment; the information prescribed in FAR 1.602–3(c)(1) and (c)(3) through (6); and a recommendation to the ratifying official as to whether the unauthorized commitment should be ratified.
(2) Following the signature of the contracting officer, the recommendation shall include a statement that the ratifying official could have granted authority to enter into a contractual commitment at the time it was made and still has the authority to do so; that the ratifying official hereby ratifies (or disapproves) the unauthorized commitment in the amount specified; and a date and signature block for the ratifying official.
(c) The information required in paragraph (b)(1) of this section shall be supported by factual findings included or referenced in the recommendation.
(d) The contracting officer shall submit the complete file to the ratifying official. For actions exceeding $1,000, the file shall be submitted through the head of the contracting activity to the Procurement Executive.
(e) Upon receipt and review of the complete file, if the ratifying official ratifies the unauthorized commitment, the file shall be returned, through the head of the contracting activity if the action exceeds $1,000, to the contracting officer for issuance of the appropriate contractual document(s). If the request for ratification is not justified, the ratifying official shall return the request to the head of the contracting activity (if over $1,000) or to the contracting officer (if under $1,000) with a written explanation for the decision and a recommendation for disposition of the action.
(e)
(1)
(2)
As necessary, the contracting officer shall distribute copies of the signed contract or modification to those officers/offices involved in contract administrative support functions,
Heads of contracting activities shall maintain standard procedures to conform to FAR 4.802 for file location and maintenance.
(f)
(a) It is the Department's policy that all contracts, regardless of dollar value, be properly documented so as to provide a complete record of: pre-solicitation activities; the solicitation, evaluation, and award process; and, the administration of the contract through closeout.
(b) All domestic contracting activities awarding contracts using other than simplified acquisition procedures shall use the format of Form DS–1930,
(c) Each table of contents is organized in chronological order, with six separate sections for each of the six parts of the file folder (from Section I, Pre-Solicitation, through Section VI, Contract and Modifications/Contract Closeout). Alternatively, for ease of contract administration, offices may choose to organize contract files with Section VI of the table of contents at the beginning of the folder, with Section I at the back of the folder.
(d) The format of Form DS–1928,
(a) This section sets forth procedures for closing out contracts awarded using other than simplified acquisition procedures by contracting activities and requirements offices. It is the Department's policy to close out contracts in the time frames prescribed by FAR Part 4.
(b) Contracting activities are responsible for initiating each contract closeout. Contracting activities and requirements offices are jointly responsible for timely compliance with required contract closeout procedures.
(c) The contract closeout process shall begin as soon as possible after the contract is physically completed, which means that the contractor has delivered the required supplies and the Government has inspected and accepted them, or the contractor has performed and the Government has accepted all services required by the contract, and the base period and any option periods exercised have expired.
(d)
(1) The contracting officer shall verify that all work under the contract has been completed; obtain the COR's assessment of the contractor's performance; and conduct an initial funds status review,
(2) After receipt of the COR's response, and the contractor's release, the contracting officer shall send a final payment memo to the office responsible for payment of invoices/vouchers.
(3) An audit is required for cost-reimbursement contracts over $550,000, unless available data are considered adequate for a reasonableness determination, in which case the
(4) The contracting officer shall send a letter to the contractor requesting release of claims, using the appropriate format. In addition, a Contractor Assignment Letter is required for certain contracts. To determine which format is applicable, contracting officers shall refer to the Payments clause in the contract.
(5) The contracting officer shall reconcile the contract obligations and contractor payments, and then deobligate any excess funds remaining in the contract by issuing a contract modification on a SF–30. Close coordination with the finance office is necessary in order to receive the required information to perform a funds status review.
(6) The contracting officer shall verify that all relevant documentation is included in the contract file (see 604.803–70).
(7) Upon completion of 8(a) contracts, the contracting officer shall complete the Small Business Administration's Contract Completion Form within ten (10) days of contract completion. One copy shall be forwarded to SBA, one copy shall be retained in the contract file, and one copy shall be sent to OSDBU.
(8) For classified contracts, the contractor is required to return to the Department all classified material received or generated under the contract, or to destroy all classified material, unless retention is requested and authorized by the Department. The contracting officer shall notify DS/PRD/IN of contract completion, final delivery of goods or services or the termination of the classified contract. The contracting officer shall ensure that any classified material contained in the contract file is properly marked and accounted for.
(9) Closeout documents are available on the Intranet at the A/OPE Web site.
(e) Contract files that have been closed out shall be retained in accordance with the schedule in FAR 4.805.
(f) Contract files for contracts using simplified acquisition procedures are considered closed when the contracting officer receives evidence of property/services and final payment. Disposal of such files shall be as prescribed in FAR 4.805.
Heads of contracting activities shall prescribe procedures for handling, storing, and disposing of contract files. Additional guidance on records management may be found in 5 FAM.
The contracting officer shall insert the clause at 652.204–70, Department of State Personal Identification Card Policy and Procedures, in solicitations and contracts that require contractor employees to perform on-site at a DOS location and/or that require contractor employees to have access to DOS information systems.
(c)(1)
(2)
(3)
(i) The first six positions shall commence with “S” to designate a DOS-issued contract. The remaining five characters shall identify the activity preparing the instrument. Domestic and overseas contracting activities shall assign the character codes using the five-digit designator from the listing at
(ii) The seventh and eighth positions shall be the last two digits of the fiscal year in which the number is assigned.
(iii) The ninth position shall be a capital letter assigned to indicate the type of instrument, as follows:
(iv)(A) The tenth through thirteenth positions shall be the serial number for the instrument. A separate set of serial numbers may be used for any type of instrument listed in paragraph (c)(3)(iii) of this section. Each series of numbers for the same activity shall begin with the number 0001 at the start of each fiscal year.
(v)(A) The following illustrates a properly configured contract number for the first number assigned to a fiscal year 2015 contract awarded by the Department of State, Embassy Ottawa: SCA525–15–C–0001
(B) Use of the dashes to separate the individual elements of the series is optional; however, when reporting individual contract actions to the Federal Procurement Data System (see FAR subpart 6.4), dashes shall not be used.
(C) Contracting activities are authorized to use the first digit of the serial number (position 10) to establish discrete series of numbers. For example, the “1000” series may be reserved for Bureau of Consular Affairs requirements (domestic), or the “1000” series may be reserved for Economic section requirements (overseas). Use of discrete series is appropriate generally for activities handling large numbers of transactions and can provide useful management information.
(4)
The contracting officer shall review each proposed contractual document and its supporting file for completeness and accuracy. Each contract file shall contain all pertinent information applicable to the proposed action. Each contract file should be in sufficient detail to permit reconstruction of all significant events by any subsequent reviewer without referral to the individual responsible for the contractual action.
(a)
(2)
(b)
(c)
A procurement quality assurance program is essential to the effective operation of each domestic contracting activity. Each domestic contracting activity and RPSO shall develop a quality assurance plan for review and approval of contract actions to ensure that all requirements of law, regulation, Departmental policy, and sound procurement practices are met, the taxpayer's interests are adequately protected, and the Department's mission is well-served. Post quality assurance includes A/OPE review of actions exceeding warrant levels and Staff Assistance Visits (SAVs).
All contract actions above the simplified acquisition threshold shall be independently reviewed by at least one other qualified contracting professional. This includes solicitations, contracts, contract modifications, and delivery/task orders. This requirement is waived for overseas posts and RPSOs that have only one qualified contracting professional.
(a) The review shall focus on both compliance with statutory/regulatory requirements as well as good contracting practices. Reviews shall be included in the official contract file along with documentation regarding the actions taken in response to the review.
(b) Reviews should be limited in time to prevent unnecessary procurement lead-time, but thorough in scope, considering all documents in the contract file and all relevant contracting issues. Checklists may be used to facilitate a thorough review, as appropriate.
The solicitation, contract, or contract modification being reviewed shall not be issued until all review comments requiring corrective action are satisfactorily resolved. Waivers shall not be granted except in unusual circumstances, and shall be approved in advance by the head of the contracting activity.
(a) L/BA shall review solicitations, contract awards, and delivery orders against GSA Federal Supply Schedule contracts exceeding $1 million that are generated by domestic contracting activities, including RPSOs. L/BA shall also review domestic contract modifications exceeding $1 million if the scope or ceiling of the contract may be in question. This review is not required for modifications exercising priced options, incremental funding modifications, and similar actions that do not involve questions regarding the scope or ceiling of the contract.
(b) L/BA shall also review and approve any nonpersonal services contract, purchase order or blanket purchase agreement to be awarded to an individual who is a U.S. citizen.
A/LM issues procedures for the acquisition of secure items that are needed by overseas posts. Posts shall contact A/LM/AQM regarding secure procurement matters, and shall consult the periodic guidance issued by A/LM on this subject.
(a)(1) Contracting officers at overseas posts shall submit notices of proposed contract actions to A/OPE for electronic transmittal to the GPE. Alternately, posts may obtain a user ID and password that allows direct registration and issuance of the notice in the GPE. Posts should contact A/OPE for assistance in obtaining the ID and password if they choose to directly input the notice information.
(a) All justifications shall address the requirements of FAR 6.303–2. A sample Justification for Other than Full and Open Competition for acquisitions by both overseas posts and domestic contracting activities is available on the A/OPE Intranet Web site. Use of the format for overseas posts is mandatory; domestic contracting activities may develop their own format based on the sample. In addition, sample formats are provided for posts to justify motor vehicle and household appliance purchases made in accordance with the Department's standardization program (see 606.370(b)). All applicable approvals are as indicated on the formats. The justification must be completed and signed by the appropriate individuals.
(b)(9) All justifications for acquisitions exceeding $5 million shall include a copy of the acquisition plan, as required by 607.103(d).
It is the Department's policy that every acquisition be conducted and the contract file documented in conformance with the requirements for acquisition planning pursuant to FAR part 7.
(d) Domestic requirements offices must develop a formal, written acquisition plan for all acquisitions exceeding $5 million. This includes base period plus all option years. The plan shall address the content requirements of FAR 7.105.
(j) Acquisition plans for service contracts with an anticipated annual expenditure exceeding $25 million must be approved by the bureau Assistant Secretary.
(b)(10) Acquisition Plans for support of contract administration and other tasks closely related to inherently governmental functions must include a determination that the services being requested are not inherently governmental and a risk mitigation strategy. Procurement Information Bulletin (PIB) 2011–11, Attachment 1, lists functions requiring additional oversight and potential mitigation strategies.
(b)(19) Acquisition Plans must include planning for contract administration. Planning shall be developed by the bureau technical program office and should consider an initial assessment of resources required for contractor oversight, support, travel and communications. Planning should take into account the need for multiple technical monitors based on geographic dispersion and multiple technical disciplines. Program offices must identify financial and other resources that are reserved for implementation of contract administration.
(e) Requirements offices shall provide to the contracting officer a written determination that none of the functions to be performed are inherently governmental. This determination shall be included with the procurement request package, which is transmitted to the contracting officer to initiate an action. The Form DS–4208 may be used to meet this requirement. The contracting officer shall obtain review from the Assistant Legal Adviser for Buildings and Acquisitions (L/BA) of any request package that the contracting officer determines raises substantial questions as to the performance of inherently governmental functions. Disagreements regarding the determination shall be resolved by the head of the contracting activity.
22 U.S.C. 2651a, 41 U.S.C. 1702 and 48 CFR chapter 1.
(a)(4) In accordance with Section 2(a) of the State Department Basic Authorities Act of 1956, as amended (22 U.S.C. 2669), overseas printing and binding services may be acquired from sources other than the Government Printing Office.
(b) The DOS central printing authority is the Director, Global Publishing Solutions under the Deputy Assistant Secretary for Global Information Services.
(a) A/LM funds and controls the acquisition of official vehicles required by overseas posts. Accordingly, any acquisition of official vehicles by overseas contracting activities must be approved and authorized in advance by A/LM.
(b) GSA is the mandatory source for U.S. manufactured vehicles acquired in the United States. Purchase requests are submitted by A/LM to GSA on behalf of overseas posts. Overseas posts shall use U.S. manufactured vehicles unless justified as described in paragraph (c) of this section.
(c) Overseas posts may acquire non-U.S. manufactured vehicles only in special cases that are approved in advance. Requests to purchase non-U.S. manufactured vehicles may be justified under the conditions specified in 6 FAM 228.9–3(B)(c). The request shall be submitted to A/LM for approval. If approval is granted to acquire non-U.S. manufactured vehicles from the local economy, overseas posts shall follow the normal procedures in the FAR.
(d) Standardization of motor vehicles shall follow the procedures in 606.370.
(a)
(2) DOS overseas contracting activities shall not obtain GSA waivers or acquire vehicles through GSA or directly from sources in the United States on behalf of other agencies. Requests to acquire vehicles in this manner shall be returned to the requesting agency without action, and the agency instructed to use its own contracting personnel or GSA for this purpose.
(b)
The Procurement Executive is the agency head's designee to be the debarring official and the suspending official.
A/OPE shall accomplish the agency responsibilities prescribed in FAR 9.404(c)(1) through (6). The authority to establish procedures prescribed in FAR 9.404(c)(7) is delegated, without power of redelegation, to the head of the contracting activity.
Contracting officers shall not award to any of the entities listed on the Specially Designated Nationals (SDN) List, available on the Department of Treasury's Office of Foreign Assets Control Web site at
(d) The contracting officer shall distribute copies of each purchase order in conformance with subpart 604.2.
The contracting officer shall ensure that the appropriate clauses prescribed in FAR part 13 are added or incorporated by reference on all purchase orders with both U.S. and foreign vendors.
In addition to the appropriate FAR clauses, each purchase order shall incorporate all DOSAR clauses required for or applicable to the acquisition. The DOSAR clauses may be incorporated by reference.
BPAs shall not be used to acquire pest control services.
(a) Contracting officers shall conduct an annual internal review to ensure that authorized BPA procedures are being followed and report the results of the review, including needed corrective action, to the head of the contracting activity.
(b)(2) Other than commercial items. The OF–347 shall be mandatory for use by domestic contracting activities for issuing purchase orders, delivery orders, and BPAs, unless ordering against another Federal agency contract that stipulates a different form (
Contracting officers shall use Forms DS–1918, Purchase Order File; DS–1919, Delivery Order File; DS–1920, Blanket Purchase Agreement (BPA) File; and DS–3014, Purchase Card Transaction File (Actions Exceeding $3,000 Through $25,000), to record relevant data and document those acquisitions, respectively.
(a) * * * The HCA is delegated authority to appoint someone other than the contracting officer as source selection authority for a particular acquisition.
(b)(2) It is the Department's policy to use the structured approach for profit/fee analysis contained in the Department of Health and Human Services' (HHS) FAR Supplement (see 48 CFR chapter 3), for acquisitions awarded by domestic contracting activities and RPSOs. This document may be accessed from A/OPE's Acquisition Web site (see 601.105–3). Contracting officers shall follow these procedures. HHS Form 674,
(c)(4)(i)(B) In accordance with a delegation from OBO, overseas posts may request a waiver from A/OPE if post is unable to negotiate a price for architect-engineer services within the six percent price limitation. To obtain a waiver, the contracting officer must send the following information to A/OPE:
Pursuant to 601.601–70(a)(1)(i), no authority is delegated to overseas posts to enter into cost-reimbursement, fixed-price incentive, or fixed-price redeterminable contracts, unless the Procurement Executive's approval is obtained. Such requests shall be submitted by the head of the contracting activity on a case-by-case basis.
(d) The Procurement Executive has issued class determinations for the following categories of contracts awarded by overseas contracting activities: painting, vehicle insurance, vehicle rental, alarm installation, cell phone rental, janitorial, hotel and cost per copy services; gardening and maintenance services; and packing/shipping services. Copies may be found in the Overseas Contracting and Simplified Acquisition Guidebook. Contracting officers need not develop their own determinations provided that they use A/OPE's model solicitations. Contracting officers shall place a copy of the appropriate determination in the contract file.
(a)
(b) The contracting officer has greater latitude in holding discussions with the business concerns being considered under an 8(a) program acquisition if under the $4 million competitive threshold for 8(a) competition than under a non-8(a) program acquisition. Informal assessments of potential 8(a) sources shall be within the parameters of 13 CFR 124.308(g). The technical evaluation must be carefully reviewed to determine if any source declared to be unacceptable is capable of being made acceptable.
The head of the contracting activity is the agency head's designee for the purpose of executing the written determination to not purchase ENERGY STAR® or FEMP-designated products.”
The revision reads as follows:
(e) The Procurement Executive is the agency head's designee for the purposes of FAR 27.201–2(e).
(b) DOS personnel shall report immediately and in writing any apparent or suspected instances where the contractor's request for advance, partial, or progress payments is based on fraud. The report shall be made to the contracting officer and the Assistant Inspector General for Investigations. The report shall outline the events, acts, or conditions which indicate the apparent or suspected violation and include all pertinent documents. The Assistant Inspector General for Investigations will investigate, as appropriate. If appropriate, the Office of the Inspector General will provide a report to the Procurement Executive.
(c) The Agency Board of Contract Appeals for the Department of State is the United States Civilian Board of Contract Appeals (CBCA). See
(a) For acquisitions conducted by A/LM/AQM on behalf of the Bureau of Overseas Buildings Operations, the final selection decision shall be made by the Director/Chief Operating Officer of the Bureau of Overseas Buildings Operations, with the concurrence of the contracting officer and L/BA. For other domestic acquisitions, the selection decision shall be made by an individual designated by the Assistant Secretary of State for Administration. For acquisitions conducted by overseas posts, the selection decision shall be made by the contracting officer.”
(a) Contracting officers at overseas posts may request a waiver from A/OPE if the contracting officer is unable to negotiate a fee within the six percent limitation. See 615.404–4(c)(4)(i)(B).”
(c) Any Acquisition Plan or procurement request package for services expected to exceed $25,000 shall include a Form DS–4208 completed by the requiring activity. Instructions for completing the DS–4208 may be found at
(e) The Contracting Officer shall review the Forms DS–4208 submitted by requiring activities, not contract for inherently governmental functions and assist in implementation of mitigation strategies for efforts that are closely associated with inherently governmental functions. A copy of the DS–4208 shall be retained in the contract file.
(a)
(b)
(c)
(d)
(2) This authority was further amended under the National Defense Authorization Act for Fiscal Year 2002 which added subsection (n) to 22 U.S.C. 2669. This language states “exercise the authority provided in section (c), upon the request of the Secretary of Defense or the head of any other department or agency of the United States, to enter into personal services contracts with individuals to perform services in support of the Department of Defense or such other department or agency, as the case may be.” This authority allowed the use of 22 U.S.C. 2669(c) by all other agencies, provided they meet certain criteria and agree to follow certain guidelines laid out in a Memorandum of Agreement (MOA). That MOA is not signed at the post level, but by a senior official at the Department of State and the other agency. Without the MOA in place, other agencies may not use this basic authority. HR/OE has responsibility for implementation of the authority that came with this legislative change. The HR/OE Web site includes the latest listing of agencies that have signed the MOA and can use this authority.
(3) This statutory language has continuing effect and provides authority to the Department of State, and now other agencies, if they so agree, to obtain personal services without adherence to acquisition statutes. In furtherance of the authority provided by the statute, the Procurement Executive has waived the applicability of acquisition regulations when obtaining personal services under the authority of 22 U.S.C. 2669(c). As a result, it is not necessary for the individual executing a PSA under the authority of 22 U.S.C. 2669(c) to have a contracting officer's certificate of appointment required under FAR 1.603 and 601.603 (see 601.603–3(d)).
(e)
(1) The Human Resources Officer;
(2) The Human Resources/Financial Management Officer; or,
(3) The Management Officer or American FSO designated to perform human resources functions (
(a) The Department of State subscribes to the Contractor Performance Assessment Reporting System (CPARS) maintained at
(b) All DOS contracting officers shall evaluate contractors' past performance as required by FAR 42.1502 and 42.1503.
(c) All Terminations for Default and Terminations for Cause shall be entered into CPARS regardless of contract purpose or dollar value.
(d) Heads of contracting activities shall send a list of the names, work addresses, and phone numbers of all acquisition personnel whom they wish to have access to the CPARS to
The contracting officer shall insert the clause at 652.247–70, Notice of Shipment, in solicitations and contracts entered into and performed outside the United States, when overseas shipment of supplies is required.
The contracting officer shall insert the clause at 652.247–71, Shipping Instructions, in solicitations and contracts with a source in the United States if overseas shipment of supplies is required.
All proposed termination settlements shall be reviewed and approved by the Office of the Legal Adviser for legal sufficiency. In addition,
(a) All proposed termination settlements from domestic contracting activities shall be approved by the head of the contracting activity, with the exception of termination settlements on simplified acquisitions and no-cost termination settlements; and,
(b) All proposed termination settlements from overseas contracting activities shall be approved by the Procurement Executive.
As prescribed in 604.1303–70, insert the following clause:
(a) The Contractor shall comply with the Department of State (DOS) Personal Identification Card Policy and Procedures for all employees performing under this contract who require frequent and continuing access to DOS facilities, or information systems. The Contractor shall insert the substance of this clause in all subcontracts when the subcontractor's employees will require frequent and continuing access to DOS facilities, or information systems.
(b) The DOS Personal Identification Card Policy and Procedures may be accessed at
(a) The Department of State's Advocate for Competition is responsible for assisting industry in removing restrictive requirements from Department of State solicitations and removing barriers to full and open competition and use of commercial items. If such a solicitation is considered competitively restrictive or does not appear properly conducive to competition and commercial practices, potential offerors are encouraged first to contact the contracting officer for the solicitation. If concerns remain unresolved, contact:
(1) For solicitations issued by the Office of Acquisition Management (A/LM/AQM) or a Regional Procurement Support Office, the A/LM/AQM Advocate for Competition, at
(2) For all others, the Department of State Advocate for Competition at
The revision reads as follows:
(b) The Contractor shall procure Defense Base Act (DBA) insurance directly from a Department of Labor (DOL) approved insurance provider. Approved providers can be found at the DOL Web site at
The revision reads as follows:
(d) * * *
(1) * * *
If the bidder/offeror's participation was as a partner or co-venturer, indicate the percentage of the project performed by the bidder/offeror: ____ %
(b) When New Year's Day, Independence Day, Veterans Day or Christmas Day falls on a Sunday, the following Monday is observed; when it falls on Saturday, the preceding Friday is observed. * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
The National Marine Fisheries Service (NMFS) issues this final rule amending the Bottlenose Dolphin Take Reduction Plan (BDTRP) and its implementing regulations under the Marine Mammal Protection Act (MMPA). The rule requires the year-round use of modified pound net leaders for offshore Virginia pound nets in specified waters of the lower mainstem Chesapeake Bay and coastal state waters. Virginia pound net-related definitions, gear prohibitions, and non-regulatory measures are also finalized. This final rule is based on consensus recommendations of the Bottlenose Dolphin Take Reduction Team (BDTRT). For consistency, NMFS also amends current regulations and definitions for Virginia pound nets under the Endangered Species Act (ESA) for sea turtle conservation.
This final rule is effective March 11, 2015.
The proposed rule, the BDTRP and its amendments, the BDTRT meeting summaries with consensus recommendations, and other background documents are available at
Stacey Horstman, NMFS Southeast Region,
This final rule amends: (1) The BDTRP and its implementing regulations at 50 CFR 229.2, 229.3, and 229.35 in accordance with section 118(f) of the MMPA; and (2) current definitions and regulations issued under the ESA for sea turtle conservation at 50 CFR 222.102, 223.205, and 223.206 (d)(10). The BDTRP was originally published on April 26, 2006, and was amended on December 19, 2008, and July 31, 2012. NMFS is further amending the BDTRP to meet its MMPA-mandated goal of reducing incidental mortality and serious injury of strategic stocks of bottlenose dolphin from the Virginia pound net fishery. Regulations for this amendment are based on the BDTRT's consensus recommendations, which are generally consistent with existing regulations enacted under the ESA for sea turtle conservation, with some revisions and updates. Therefore, amendments to the ESA sea turtle conservation regulations for the Virginia pound net fishery are finalized within the same rulemaking for consistency in definitions and regulations.
Details regarding the development and justification of this final rule were provided in the preamble of the proposed rule (79 FR 21695; April 17, 2014) and are not repeated here.
This final rule requires the year-round use of modified pound net leaders for offshore Virginia pound nets within the Bottlenose Dolphin Pound Net Regulated Area. It removes the land-based inspection program for modified pound net leaders under the ESA. Instead, under both the MMPA and ESA, it requires fishermen to attend a one-time compliance training before setting modified pound net leaders and to keep on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS. The rule also requires that all three sections of pound net gear (leader, heart, and pound) be fished at the same time with the exception of a continuous 10-day period to deploy, remove, and/or repair gear. Virginia pound net-related definitions are added for effective implementation of the regulatory measures, including hard lay lines, modified pound net leader, nearshore pound net, offshore pound net, and pound net. Lastly, non-regulatory measures are finalized under the BDTRP including outreach and coordination to help with compliance and monitoring of regulatory measures for the Virginia pound net fishery.
NMFS received five comment letters on the proposed rule via email or
Immediately following the September 2009 BDTRT meeting and as recommended by the Team, we sent the Virginia Marine Resources Commission (VMRC) a letter with the BDTRT's recommendations to reduce bottlenose dolphin serious injury and mortality from the Virginia pound net fishery. After receiving our letter, the VMRC promptly held public hearings and related meetings to discuss similar state regulations for the fishery. We sent the VMRC a follow-up comment letter supporting their actions and requested they adopt the BDTRT's recommendations. The VMRC subsequently enacted two regulations on December 18, 2009 and July 16, 2010 for the pound net fishery based in part on the BDTRT's recommendations. Importantly, the regulation issued in December 2009 required fishermen using offshore pound nets in the Virginia tidal waters east of the Chesapeake Bay Bridge Tunnel to use a modified leader year-round. This includes the area in the southern portion of Chesapeake Bay near Lynnhaven Inlet where the majority (77%) of dolphin entanglements in pound net leaders were documented. The state regulation issued in July 2010 required fishermen using offshore nets in the sea turtle Pound Net Regulated Area I to use modified leaders from May 6 through July 31. This provided an additional two weeks of conservation benefits in this area than were required at the time under the ESA sea turtle conservation regulations. Bottlenose dolphin stranding data confirm a conservation benefit to dolphins from the enactment of these state regulations. When comparing stranding data for the two-years immediately before (2008–2009) and after (2010–2011) the state's 2010 regulations, there was a 64% decrease in the total average annual number of bottlenose dolphin interactions with pound nets in the regulated waters. Additional regulations are still needed however to help ensure pound net entanglements do not cause mortality or serious injury of bottlenose dolphins to exceed the Potential Biological Removal (PBR) level for affected stock(s), especially the Northern North Carolina Estuarine System Stock.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. One comment was received regarding the expected economic effects of the proposed rule. This comment is addressed in the comments and response section of this final rule. The comment stated that this rule would have a larger economic effect on the fishing operation of the commenter than described in the proposed rule. No other comments were received that challenged the economic analysis provided, and the information provided in the comment is inconsistent with the best scientific information available regarding the catch efficiency of pound net gear using different leaders.
Although not an issue raised through public comment, subsequent to publication of the proposed rule, NMFS reconsidered its analysis with respect to the appropriate universe of affected entities. In the proposed rule, NMFS identified 16 entities upon which the proposed rule would directly apply, or less than one percent of the estimated 3,000 licensed commercial finfish fishermen in Virginia. The basis for consideration of the 16 entities within the context of the 3,000 licensed fishermen was consideration that the 16 entities use multiple gears in addition to pound nets to harvest saltwater species and the species they harvested with their pound nets are also commonly, and for some species primarily, harvested by other fishermen within the 3,000 licensed fishermen, who also fish with multiple gears. As a result, in the original analysis, these 16 entities were considered part of the general commercial finfish industry and not sufficiently distinct to be considered a separate industry. Even if NMFS considered this component to be a distinct fishing sector and, as a result, this rule would be expected to directly apply to 100 percent of the entities in the sector, the outcome would be the same, because of the absence of expected adverse economic effects on these entities. As noted in the proposed rule, all fishermen using an offshore pound net are expected to already be using the modified pound net leaders required by this final rule for three main reasons: (1) The modified pound net leaders are currently required year-round or seasonally within the BDPNRA by state or federal regulations; (2) research on the catch efficiency of modified pound net leaders within the BDPNRA showed no significant differences in harvest weight for the species analyzed when compared to using traditional leaders; and (3) incurring the costs associated with maintaining two types of leaders and switching the gear when modified leaders were not required by either current state or federal regulations would not make rational economic sense given the absence of improvements in catch efficiency. Traditional leaders installed on offshore pound nets were calculated to cost $5,418 to make and install/remove. Maintaining and using both types of leaders (
NMFS determined this action is consistent to the maximum extent practicable with the enforceable policies of the Virginia Coastal Zone Management Program. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act on April 17, 2014. The Commonwealth of Virginia concurred with the consistency determination in a letter dated May 8, 2014.
This action contains policies with federalism implications that were sufficient to warrant preparation of a federalism summary impact statement under Executive Order 13132 and a federalism consultation with officials in the Commonwealth of Virginia. Accordingly, the Assistant Secretary for Legislative and Intergovernmental Affairs provided notice of the proposed action to the appropriate officials in Virginia. The Commonwealth of Virginia did not respond.
The final rule does not contain collection-of-information requirements subject to the Paperwork Reduction Act. The sea turtle conservation regulations have a current Paperwork Reduction Act collection requirement in place (OMB control number 0648–0559) for the
Endangered and threatened species, Exports, and Reporting and recordkeeping requirements.
Endangered and threatened species, Exports, and Transportation.
Administrative practice and procedure, Confidential business information, Fisheries, Marine mammals, Reporting and record keeping requirements.
For the reasons set out in the preamble, 50 CFR parts 222, 223, and 229 are amended as follows:
16 U.S.C. 1531
The additions and revisions read as follows:
(1) A pound made of mesh netting that entraps the fish;
(2) At least one heart made of a mesh netting that is generally in the shape of a heart and aids in funneling fish into the pound; and
(3) A leader, which is a long, straight element consisting of mesh or vertical lines that directs the fish offshore towards the pound.
16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361
(b) * * *
(17) Set, fish with, or fail to remove a modified pound net leader in Pound Net Regulated Area I or Pound Net Regulated Area II defined in 50 CFR 222.102 and referenced in 50 CFR 223.206(d)(10) at any time from May 6 through July 15 unless the pound net licensee and the vessel operator meet the modified pound net leader compliance training requirements in accordance with § 223.206(d)(10)(vii).
(18) Alter or replace any portion of a modified pound net leader so that the
(19) Set, fish with, or fail to remove a modified pound net leader at any time from May 6 through July 15 in Pound Net Regulated Area I or Pound Net Regulated Area II unless the fisherman has on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS.
(20) Set, fish with, or fail to remove pound net gear in Pound Net Regulated Area I or Pound Net Regulated Area II, unless it has the all three continuous sections as defined in 50 CFR 222.102, except that one or more sections may be missing for a maximum period of 10 days for purposes of setting, removing, and/or repairing pound nets.
(d) * * *
(10) * * *
(vii) Modified pound net leader compliance training. Any pound net licensee and any vessel operator who have modified pound net leaders set in Pound Net Regulated Area I or Pound Net Regulated Area II at any time from May 6 through July 15 must have completed modified pound net leader compliance training and possess on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS. NMFS retains discretion to provide exemptions in limited circumstances where appropriate. Notice will be given by NMFS announcing the times and locations of modified pound net leader compliance training.
16 U.S.C. 1361
(1) A pound made of mesh netting that entraps the fish;
(2) At least one heart made of a mesh netting that is generally in the shape of a heart and aids in funneling fish into the pound; and
(3) A leader, which is a long, straight element consisting of mesh or vertical lines that directs the fish offshore towards the pound.
(s)
(2) It is prohibited to set, fish with, or fail to remove a modified pound net leader in the Bottlenose Dolphin Pound Net Regulated Area unless the fisherman has on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS.
(a)
(b) * * *
(c)
(2)
(d) * * *
(2) * * *
(ii)
(B) Year-round, any nearshore and offshore pound nets set in the Bottlenose Dolphin Pound Net Regulated Area must have all three continuous sections as defined in 50 CFR 229.2, except that one or more sections may be missing for a maximum period of 10 days for purposes of setting, removing, and/or repairing pound nets.
(C) The pound net licensee and the vessel operator of any offshore pound net set in the Bottlenose Dolphin Pound Net Regulated Area must have completed modified pound net leader compliance training and possess on board the vessel a valid modified pound net leader compliance training certificate issued by NMFS. NMFS retains discretion to provide exemptions in limited circumstances where appropriate. Notice will be given by NMFS announcing the times and locations of modified pound net leader compliance training.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) is proposing to amend its regulations to permit the use of American viticultural area names as appellations of origin on labels for wines that would otherwise qualify for the use of the AVA name, except that the wines have been fully finished in a State adjacent to the State in which the viticultural area is located, rather than the State in which the labeled viticultural area is located. The proposal would provide greater flexibility in wine production and labeling while still ensuring that consumers are provided with adequate information as to the identity of the wines they purchase. TTB permits the use of viticultural area names as appellations of origin on wine labels, so that vintners may better describe the origin of their wines and consumers may better identify the wines they may purchase.
Comments must be received by April 10, 2015.
Please send your comments on this proposed rule to one of the following addresses:
•
•
•
See the Public Participation section of this proposed rule for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this proposed rule and any comments that TTB receives about this proposal at
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202–453–1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120–01 (Revised), dated December 10, 2013, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved viticultural areas.
Section 4.25(b)(1) of the TTB regulations (27 CFR 4.52(b)(1)), in part, sets forth the requirements for labeling an American wine with a State name as an appellation of origin. For a wine labeled with a State appellation of origin, at least 75 percent of the wine must be derived from fruit or agricultural products grown in the State used as the appellation, and the wine must be fully finished in either the
Section 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)), in part, sets forth the requirements for labeling American wine with an AVA as an appellation of origin. Under this section, at least 85 percent of the wine must be derived from grapes grown within the named AVA. Additionally, in order to use the name of an AVA that is located entirely within a single State, hereinafter referred to as a “single-State AVA,” the wine must also be fully finished within the State in which the labeled AVA is located. In the case of AVAs that cover two or more States, hereinafter referred to as “multi-State AVAs,” the wine must be fully finished within one of the States in which the AVA is located.
These current regulations, including the requirement that a wine labeled with an AVA appellation of origin must be fully finished within the State (or one of the States) in which the AVA is located, are derived from T.D. ATF–53, published in the
On February 26, 2014, TTB published Notice No. 142 in the
During the public comment period for Notice No. 142, TTB received comments from several winemakers who primarily use grapes grown within The Rocks District of Milton-Freewater but fully finish their wines using custom crush facilities across the State line in Walla Walla, Washington. Some of the commenters stated that they use custom crush facilities in Walla Walla because there are no such facilities nearby in Oregon. TTB understands custom crush facilities to be businesses that provide a variety of winemaking services, such as grape crushing, fermentation, barrel and tank storage, wine analysis, and bottling, for clients that do not have their own facilities. Other commenters stated that they own wineries in Walla Walla and also own vineyards both in Washington and in The Rocks District of Milton-Freewater AVA.
Because The Rocks District of Milton-Freewater AVA is a single-State AVA located in Oregon, under current TTB wine labeling regulations, none of these commenters would be able to use that AVA name as an appellation of origin, even if 85 percent of the grapes in their wines came from The Rocks District of Milton-Freewater AVA, because their wines are fully finished in Washington. However, their wines could be labeled with the Columbia Valley or Walla Walla Valley AVA names as appellations or origin because The Rocks District of Milton-Freewater AVA is located within both of those AVAs, and both the Columbia Valley and Walla Walla Valley AVAs are multi-State AVAs that cover portions of Oregon and Washington. Additionally, their wines could be labeled simply with the political appellation “Oregon,” since wines labeled with a State appellation of origin may be fully finished in an adjacent State.
Several commenters stated that fully finishing their wines in Oregon, rather than in Washington, would be burdensome because they would have to either transport their grapes to the nearest Oregon custom crush facility, which is over 200 miles away from The Rocks District of Milton-Freewater AVA, or build their own private wineries in Oregon. Others commented that it makes little sense for TTB to allow the use of a single-State AVA name as an appellation of origin for a wine made from grapes that are grown in that viticultural area but are transported hundreds of miles across a single State, while prohibiting the use of that same AVA name on a wine simply because the grapes are transported across a State line to a winery located only 10 miles from the vineyard. Accordingly, these commenters asked TTB to amend its regulations to allow wines fully finished in Washington to be labeled with The Rocks District of Milton-Freewater AVA appellation of origin, so that consumers would have more detailed and accurate information as to the origin of the grapes used to make the wine.
TTB has determined that the concerns raised in the comments on Notice No. 142 have merit. TTB acknowledges that the current regulations would allow wine that is fully finished in Washington and made primarily from grapes grown within The Rocks District of Milton-Freewater AVA to be labeled only with the less specific “Walla Walla Valley,” “Columbia Valley,” or “Oregon” appellations of origin. TTB notes that the purpose of the AVA program is to provide consumers with additional information on the wines they may purchase by allowing vintners to describe more accurately the origin of the grapes used in the wine. Therefore, TTB is proposing to amend its regulations at § 4.25(e)(3)(iv) to allow wines that meet the requirements of § 4.25(e)(3)(i) and (ii) to be labeled with a single-State AVA name as an appellation of origin if the wine was fully finished either within the State in which the AVA is located or within an adjacent State.
TTB believes that vintners, grape growers, and consumers would benefit from the removal of the requirement in § 4.25(e)(3)(iv) that wines labeled with an AVA appellation of origin be fully finished within the same State as the AVA. Vintners would have a greater choice in both where they fully finish their wines and what appellation of origin they use. Grape growers within a single-State AVA may have more buyers for their grapes if vintners in adjacent States are allowed to label their wines with the AVA name. Finally, consumers would have a more accurate idea of the origin of the grapes in their wine if vintners who fully finish their wine in a State adjacent to the State where the AVA is located were able to label their wines with a more specific single-State AVA appellation of origin, such as The
TTB does not believe that the proposed amendment will cause consumer confusion. Section 4.25(b)(1)(ii) allows wines eligible for labeling with a State appellation of origin to be fully finished in an adjacent State. Section 4.25(e)(3)(iv) only requires wine labeled with any AVA appellation of origin to have been fully finished somewhere within the State in which the AVA is located, not within the AVA itself. Additionally, § 4.25(e)(3)(iv) currently allows wines eligible for labeling with a multi-State appellation of origin to be fully finished within any one of the States in which the AVA is located, not just within the State in which the grapes were grown. Since the promulgation of the appellation of origin regulations, TTB is not aware of any reported instances in which the regulations regarding the fully finishing of wine in an adjacent State resulted in consumer confusion relating to the origin of the wine or grapes. Therefore, TTB believes consumers are aware that the appellation of origin on a wine label is a statement of the origin of the grapes used to make the wine, and it would not be misleading or confusing to consumers if a wine labeled with a single-State AVA appellation of origin was actually fully finished in an adjacent State.
Therefore, for the reasons discussed above, TTB is proposing to amend its regulations to allow wines that meet the requirements of § 4.25(e)(3)(i) and (ii) to be labeled with a single-State AVA appellation of origin if the wine is fully finished either within the State in which the AVA is located or an adjacent State. If adopted, this amendment would bring the requirements for using a single-State AVA appellation of origin more in line with the requirements for using a State appellation of origin. This change would give grape growers and wine makers within a single-State AVA greater flexibility and more options in producing and marketing their products, options that are currently available to growers and wine makers within multi-State AVAs and those who use State appellations of origin. Additionally, the amendment would enable wine producers to provide consumers with more specific information on the origin of the grapes used to make the wine.
TTB's proposed changes to its appellations of origin regulations are limited to the scope of the commenters' request, which was, specifically, to allow wines to be labeled with a single-State AVA appellation of origin even if the wine was fully finished in a State adjacent to the State in which the AVA is located. Therefore, TTB is not proposing any additional changes to the regulations concerning the use of appellations of origin, including the percentage of grapes used in the wine that must come from the labeled appellation or the requirements for use of the term “estate bottled” in conjunction with an AVA appellation of origin.
Furthermore, TTB is not proposing any changes to the regulations concerning the use of multi-State AVA names as appellations of origin because the commenters' request was limited to single-State AVAs. Additionally, winemakers who label their wines with a multi-State AVA appellation of origin already have the flexibility to use winemaking facilities, including custom crush facilities, in at least one other State if they choose, unlike winemakers who label their wines with a single-State AVA appellation of origin. However, TTB is interested in hearing from winemakers whose wines are ineligible to be labeled with a multi-State AVA appellation of origin solely because they fully finish their wines in an adjacent State that is not part of the multi-State AVA.
TTB invites comments from interested members of the public on the proposed changes to the regulations regarding the use of AVA names as appellations of origin on wine labels. TTB is particularly interested in how effectively the proposed changes will further TTB's mission of ensuring that consumers are provided with adequate information about the identity of beverage alcohol products and preventing consumer deception. Please provide specific information in support of your comments.
Although the amendment in this notice of proposed rulemaking is limited to wines labeled with a single-State AVA appellation of origin, TTB is interested in comments on whether TTB should propose a similar amendment for wines labeled with multi-State AVA appellations of origin. Additionally, TTB would like comments on whether TTB should allow wines labeled with any domestic appellation of origin to be fully finished in any U.S. State. TTB may consider these comments for future rulemakings.
You may submit comments on this proposed rule by using one of the following three methods:
•
•
•
Please submit your comments by the closing date shown above in this proposed rule. Your comments must reference Notice No. 147 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.
In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name as well as your name and position title. In your comment via Regulations.gov, please enter the entity's name in the “Organization” blank of the online comment form. If you comment via postal mail or hand delivery/courier, please submit your entity's comment on letterhead.
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not
TTB will post, and you may view, copies of this proposed rule and any online or mailed comments received about this proposal within Docket No. TTB–2015–0003 on the Federal e-rulemaking portal, Regulations.gov, at
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including email addresses. TTB may omit voluminous attachments or material that the Bureau considers unsuitable for posting.
You may also view copies of this proposed rule and any electronic or mailed comments that TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street NW., Washington, DC 20005. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202–453–2270 to schedule an appointment or to request copies of comments or other materials.
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed amendments merely provide industry members with more options and additional flexibility in wine labeling decisions. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Therefore, no regulatory flexibility analysis is required.
It has been determined that this proposed rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this notice of proposed rulemaking.
Administrative practice and procedure, Advertising, Labeling, Packaging and containers, Wine.
For the reasons discussed in the preamble, TTB proposes to amend title 27, chapter I, part 4, Code of Federal Regulations, as follows:
27 U.S.C. 205, unless otherwise noted.
(e) * * *
(3) * * *
(iv) In the case of American wine, it has been fully finished (except for cellar treatment pursuant to § 4.22(c), and blending which does not result in an alteration of class and type under § 4.22(b)) within the State the viticultural area is located in or an adjacent State, or, for a viticultural area located in two or more contiguous States, within one of the States in which the viticultural area is located.
Gulf Coast Ecosystem Restoration Council.
Proposed rule.
This Proposed Rule sets forth the Gulf Coast Ecosystem Restoration Council's (Council) proposed regulations regarding the Freedom of Information Act (FOIA), Privacy Act (PA), and declassification and public availability of national security information.
Comments are due March 11, 2015.
The Council invites comments on the proposed FOIA and PA regulations. Comments may be submitted through one of these methods:
In general, the Council will make such comments available for public inspection and copying on its Web site,
Jeffrey Roberson at 202–482–1315.
The RESTORE Act, Public Law 112–141 (July 6, 2012), codified at 33 U.S.C. 1321(t) and note, makes funds available for the restoration and protection of the Gulf Coast Region through a new trust fund in the Treasury of the United States, known as the Gulf Coast Restoration Trust Fund (Trust Fund). The Trust Fund will contain 80 percent of the administrative and civil penalties paid by the responsible parties after July 6, 2012, under the Federal Water Pollution Control Act in connection with the
Two of the five components, the Comprehensive Plan and Spill Impact Components, are administered by the Council, an independent federal entity created by the RESTORE Act. Under the Comprehensive Plan Component (33 U.S.C. 1321(t)(2)), 30 percent of funds in the Trust Fund (plus interest) are available to develop a Comprehensive Plan to restore the ecosystem and the economy of the Gulf Coast Region. Under the Spill Impact Component (33 U.S.C. 1321(t)(3)), 30 percent of funds in the Trust Fund will be disbursed to the five Gulf Coast States (Alabama, Florida, Louisiana, Mississippi, and Texas) or their administrative agents based on an allocation formula established by the Council by regulation based on criteria in the RESTORE Act.
This Proposed Rule implements the Council's obligation to make records available under the Freedom of Information Act (FOIA) and Privacy Act (PA).
The Council will accept comments on the Proposed Rule for 30 days after publication, and publish a Final Rule after considering any comments.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule does not contain a “collection of information” as defined by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).
As an independent federal entity that is composed of, in part, six federal agencies, including the Departments of Agriculture, Army, Commerce, and Interior, the Department in which the Coast Guard is operating, and the Environmental Protection Agency, the requirements of Executive Orders 12866 and 13563 are inapplicable to this rule.
Administrative practice and procedure, Freedom of Information, Privacy, Public information, Classified information.
For the reasons set forth in the preamble, the Gulf Coast Ecosystem Restoration Council proposes to add 40 CFR part 1850 of Chapter VIII, to read as follows:
33 U.S.C. 1321(f); 5 U.S.C. 552; 5 U.S.C. 552a.
This subpart contains the regulations of the Gulf Coast Ecosystem Restoration Council (Council) implementing the Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended. These regulations supplement the FOIA, which provides more detail regarding requesters' rights and the records the Council may release.
The regulations of this subpart provide information concerning the procedures by which records may be obtained from the Council. Official records of the Council made available pursuant to the requirements of the FOIA shall be furnished to members of the public only as prescribed by this subpart. Information routinely provided to the public as part of a regular Council activity (for example, press releases) may be provided to the public without following this subpart.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
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(t)
(1) Search for and collect the requested agency records from field facilities or other establishments that are separate from the office processing the request;
(2) search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are the subject of a single request; or
(3) consult with another Federal agency having a substantial interest in the determination of the FOIA request.
The Council shall prepare an annual report to the Attorney General of the United States regarding its FOIA activities in accordance with 5 U.S.C. 552(e).
The Council maintains an electronic public reading room on its Web site,
(a)
(b)
(c
(1) The name, telephone number, and non-electronic address of the requester;
(2) Whether the requested information is intended for commercial use, or whether the requester represents an education or noncommercial scientific institution, or news media; and
(3) A statement agreeing to pay the applicable fees, identifying any fee limitation desired, or requesting a waiver or reduction of fees that satisfies § 1850.10(j)(1) to (3).
(d)
(e) Requestors may submit a request for records, expedited processing or waiver of fees by writing directly to the Records Management Officer via email at
(f) Any Council officer or employee who receives a written Freedom of Information Act request shall promptly forward it to the Records Management Officer. Any Council officer or employee who receives an oral request under the Freedom of Information Act shall inform the person making the request that it must be in writing and also inform such person of the provisions of this subpart.
(a)
(b)
(c)
(2) When additional time is required as a result of “unusual circumstances,” as defined in § 1850.2(t), the Records Management Officer shall, within the statutory 20 day period, issue to the requester a brief written statement of the reason for the delay and an indication of the date on which it is expected that a determination as to disclosure will be forthcoming. If more than 10 additional days are needed, the requester shall be notified and provided an opportunity to limit the scope of the request or to arrange for an alternate time frame for processing the request.
(3) The Council may toll the statutory time period to issue its determination on a FOIA request one time during the processing of the request to obtain clarification from the requester. The statutory time period to issue the determination on disclosure is tolled until the Council receives the information reasonably requested from the requester. The Council may also toll the statutory time period to issue the determination to clarify with the requester issues regarding fees. There is no limit on the number of times the agency may request clarifying fee information from the requester.
(d)
(2) The Records Management Officer will notify a requester of the determination to grant or deny a request for expedited processing within ten days of receipt of the request. If the Records Management Officer grants the request for expedited processing, the Council staff shall process the request as soon as practicable subject §§ 1850.10(d) and (e). If the Records Management Officer denies the request for expedited processing, the requester may file an appeal in accordance with the process described in § 1850.7.
(3) The Council staff will give expedited treatment to a request when the Records Management Officer determines the requester has established one of the following:
(i) Circumstances in which the lack of expedited treatment reasonably could be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by an individual primarily engaged in disseminating information;
(iii) The loss of substantial due process rights;
(iv) A matter of widespread and exceptional media interest raising possible questions about the Federal government's integrity which affects public confidence; or
(4) These procedures for expedited processing also apply to requests for expedited processing of administrative appeals.
(e)
(1) A brief statement of the reason(s) for the denial, including applicable FOIA exemption(s);
(2) An estimate of the volume of records or information withheld;
(3) The name and title or position of the person responsible for the denial of the request;
(4) The requester's right to appeal any such denial and the title and address of the official to whom such appeal is to be addressed; and
(5) The requirement that the appeal be received within 45 days of the date of the denial.
(f)
(2) Whenever the Council refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name of the agency to which the record was referred, including that agency's FOIA contact information.
(3) The referral procedure is not appropriate where disclosure of the identity of the agency, typically a law enforcement agency or Intelligence Community agency, to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy and national security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Council shall coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination shall then be conveyed to the requester by the Council.
(g)
(h)
(2) The Records Management Officer shall provide any reasonably segregable portion of a record that is responsive to the request after redacting those portions that are exempt under FOIA or this section.
(3) The Council is not required to create, compile, prepare or obtain from outside the Council a record to satisfy a request.
(i)
(a) Requesters may administratively appeal an adverse determination regarding a request by writing directly to the General Counsel via email at
(b) FOIA administrative appeals must be in writing and should contain the phrase “FOIA Appeal” on the front of the envelope or in the subject line of the electronic mail.
(c) Administrative appeals shall include a copy of the original request, the initial denial (if any), and a statement explaining the reasons that the Council should make the requested records available and the initial denial was made in error.
(d) Requesters submitting an administrative appeal of an adverse determination must ensure that the Council receives the appeal within 45 days of the date of the denial letter.
(e) Upon receipt of an administrative appeal, Council staff shall inform the requester within 20 days of the determination on that appeal.
(f) The determination on an appeal shall be in writing and, when it denies the appeal, in whole or in part, the letter to the requester shall include:
(1) A brief explanation of the basis for the denial, including a list of the applicable FOIA exemptions and a description of how they apply;
(2) A statement that the decision is final for the Council;
(3) Notification that judicial review of the denial is available in the district court of the United States in the district in which the requester resides, or has his or her principal place of business, or in which the agency records are located, or in the District of Columbia; and
(4) The name and title or position of the official responsible for denying the appeal.
The Records Management Officer or Council Executive Director, when receiving a request pursuant to these regulations, shall grant or deny such request. That decision shall be final, subject only to administrative appeal as provided in § 1850.7 of this subpart. The Council General Counsel shall deny or grant an administrative appeal requested under § 1850.7 of this subpart.
The Records Management Officer shall maintain files containing all material required to be retained by or furnished to them under this subpart. The material shall be filed by a unique tracking number.
(a)
(b)(1)
(2)
ii. For computer searches of records, the Council will charge requesters the direct costs of conducting the search. In accordance with paragraph (f) of this section, however, the Council will charge certain requesters no search fee and certain other requesters are entitled to the cost equivalent of two hours of manual search time without charge. These direct costs include the costs attributable to the salary of an operator/programmer performing a computer search.
(3)
(4)
(5)
ii. The Council will not charge a search fee or review fee for a quarter-hour period unless more than half of that period is required for search or review.
iii. The Council will not charge a fee to a requester whenever the total fee calculated under this paragraph is $25 or less for the request.
iv. Except for requesters seeking records for a commercial use, the Council will provide without charge the first 100 pages of duplication (or the cost equivalent) and the first two hours of search.
v. The provisions of paragraphs (5)(iii) and (5)(iv) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee shall be charged unless the cost of search is in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $25.
vi. No search fees shall be charged to a requester when the Council does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request, unless unusual or exceptional circumstances (as those terms are defined by the FOIA) apply to the processing of the request.
vii. No duplication fees shall be charged to requesters in the fee category of a representative of the news media or an educational or noncommercial scientific institution when the Council does not comply with the statutory time limits at 5 U.S.C. 552(a)(6) in which to respond to a request, unless unusual or exceptional circumstances (as those terms are defined by the FOIA) apply to the processing of the request.
(c)
(d)
(e)
(f)
(1)
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(3)
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(h)
(i)
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(1) Records responsive to a request shall be furnished without charge, or at a reduced rate below that established in paragraph (b) of this section, where the Council determines, after consideration of all available information, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government; and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government, the Council will consider the following factors:
(i) The subject of the request: whether the subject of the requested records concerns the operations or activities of the Government. The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: whether the disclosure is “likely to contribute” to an understanding of Government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be likely to contribute to such an understanding.
(iii) The contribution to an understanding of the subject by the public: whether disclosure of the requested information will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as his or her ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration. Merely providing information to media sources is insufficient to satisfy this consideration.
(iv) The significance of the contribution to public understanding: whether the disclosure is likely to contribute “significantly” to public understanding of Government operations or activities. The public's understanding of the subject in question prior to disclosure must be significantly enhanced by the disclosure.
(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Council will consider the following factors:
(i) The existence and magnitude of a commercial interest: whether the requester has a commercial interest that would be furthered by the requested disclosure. The Council shall consider any commercial interest of the requester (with reference to the definition of “commercial use request” in § 1850.2(b)), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: whether any identified commercial interest of the requester is sufficiently great, in comparison with the public interest in disclosure, that disclosure if “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified if the public interest standard (paragraph (j)(1)(i) of this section) is satisfied and the public interest is greater than any identified commercial interest in disclosure. The Council shall presume that if a news media requester has satisfied the public interest standard, the public interest is the primary interest served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market Government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) A request for a waiver or reduction of fees shall include a clear statement of how the request satisfies the criteria set forth in paragraphs (j)(2) and (3) of this section, insofar as they apply to each request. The burden shall be on the requester to present evidence or information in support of a request for a waiver or reduction of fees.
(5) Where only some of the records to be released satisfy the requirements for a fee waiver, a waiver shall be granted for those records.
(6) The Records Management Officer shall make a determination on the request for a waiver or reduction of fees and shall notify the requester accordingly. A denial may be appealed to the General Counsel in accordance with § 1850.7 of this subpart.
(a)
(b)
(c)
(a)
(b)
(1) The submitter has designated the information in good faith as protected from disclosure under FOIA exemption (b)(4); or
(2) The Council has reason to believe that the information may be protected from disclosure under FOIA exemption (b)(4).
(c)
(d)
(1) A statement of reason(s) why the submitter's objections to disclosure were not sustained;
(2) A description of the business information to be disclosed; and
(3) A statement that the Council intends to disclose the information seven days from the date the submitter receives the notice.
(e)
(1) The Council determines that the information is exempt and will be withheld under a FOIA exemption, other than exemption (b)(4);
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with Executive Order 12600; or
(4) The designation made by the submitter under this section or § 1850.11 appears obviously frivolous, except that, in such a case, the Council shall provide the submitter written notice of any final decision to disclose the information seven days from the date the submitter receives the notice.
(f)
(g)
In processing a request for information classified under Executive Order 13526 or any other Executive Order concerning the classification of records, the information shall be reviewed to determine whether it should remain classified. Ordinarily the Council or other Federal agency that classified the information should conduct the review, except that if a record contains information that has been derivatively classified by the Council because it contains information classified by another agency, the Council shall refer the responsibility for responding to the request to the agency that classified the underlying information. Information determined to no longer require classification shall not be withheld on the basis of FOIA exemption (b)(1) (5 U.S.C. 552(b)(1)), but should be reviewed to assess whether any other FOIA exemption should be invoked. Appeals involving classified information shall be processed in accordance with § 1850.7 of this subpart.
This subpart contains the regulations of the Gulf Coast Ecosystem Restoration Council (Council) implementing the Privacy Act of 1974, 5 U.S.C. 552a. It sets forth the basic responsibilities of the Council under the Privacy Act (the Act) and offers guidance to members of the public who wish to exercise any of
(a) For purposes of this subpart, the terms
(b)
(a) Any person who wishes to be notified if a system of records maintained by the Council contains any record pertaining to him or her, or to request access to such record or to request an accounting of disclosures made of such record, shall submit a written request, either in person or by mail, in accordance with the instructions set forth in the system notice published in the
(1) The name of the individual making the request;
(2) The name of the system of records (as set forth in the system notice to which the request relates);
(3) Any other information specified in the system notice;
(4) When the request is for access to records, a statement indicating whether the requester desires to make a personal inspection of the records or be supplied with copies by mail; and
(5) Any additional information required by § 1850.34 of this subpart for proper verification of identity or authority to access the information.
(b) Requests pertaining to records contained in a system of records established by the Council and for which the Council has published a system notice should be submitted to the person or office indicated in the system notice. Requests pertaining to Council records contained in the government-wide systems of records listed below should be submitted as follows:
(1) For systems OPM/GOVT–1 (General Personnel Records), OPM/GOVT–2 (Employee Performance File System Records), OPM/GOVT–3 (Records of Adverse Actions and Actions Based on Unacceptable Performance), GSA/GOVT–4 (Contracted Travel Services Program), OPM/GOVT–5 (Recruiting, Examining and Placement Records), OPM/GOVT–6 (Personnel Research and Test Validation Records), OPM/GOVT–7 (Applicant Race, Sex, National Origin, and Disability Status Records), OPM/GOVT–9 (Files on Position Classification Appeals, Job Grading Appeals and Retained Grade or Pay Appeals), OPM/GOVT–10 (Employee Medical File System Records) and DOL/ESA–13 (Office of Workers' Compensation Programs, Federal Employees' Compensation File), or any other government-wide system of record not specifically listed, to the
(2) For systems OGE/GOVT–1 (Executive Branch Public Financial Disclosure Reports and Other Ethics Program Records), OGE/GOVT–2 (Confidential Statements of Employment and Financial Interests) and MSPB/GOVT–1 (Appeal and Case Records), to the General Counsel at
(c) Any person whose request for access under paragraph (a) of this section is denied, may appeal that denial in accordance with § 1850.39 of this subpart.
(a) If a person submitting a request for access under § 1850.33 has asked that the Council authorize a personal inspection of records pertaining to that person, and the appropriate Council official has granted that request, the requester shall present himself or herself at the time and place specified in the Council's response or arrange another, mutually convenient time with the appropriate Council official.
(b) Prior to personal inspection of the records, the requester shall present sufficient personal identification (
(c) Any person who has requested access under § 1850.3 to records through personal inspection, and who wishes to be accompanied by another person or persons during this inspection, shall submit a written statement authorizing disclosure of the record in such person's or persons' presence.
(d) If an individual submitting a request by mail under § 1850.33 wishes to have copies furnished by mail, he or she must include with the request a signed and notarized statement asserting his or her identity and stipulating that he or she understands that knowingly or willfully seeking or obtaining access to records about another individual under false pretenses is a misdemeanor punishable by fine up to $5,000.
(e) A request filed by the parent of any minor or the legal guardian of any incompetent person shall: state the relationship of the requester to the individual to whom the record pertains; present sufficient identification; and, if not evident from information already available to the Council, present appropriate proof of the relationship or guardianship.
(f) A person making a request pursuant to a power of attorney must possess a specific power of attorney to make that request.
(g) No verification of identity will be required where the records sought are publicly available under the Freedom of Information Act.
(a) Upon receipt of request for notification as to whether the Council maintains a record about an individual and/or request for access to such record:
(1) The appropriate Council official shall acknowledge such request in writing within 10 working days of receipt of the request. Wherever practicable, the acknowledgement should contain the notification and/or determination required in paragraph (a)(2) of this section.
(2) The appropriate Council official shall provide, within 30 working days of receipt of the request, written notification to the requester as to the existence of the records and/or a determination as to whether or not access will be granted. In some cases, such as where records have to be recalled from the Federal Records Center, notification and/or a determination of access may be delayed.
(3) If access to a record is granted, the determination shall indicate when and where the record will be available for personal inspection. If a copy of the record has been requested, the Council official shall mail that copy or retain it at the Council to present to the individual, upon receipt of a check or money order in an amount computed pursuant to § 1850.41.
(4) When access to a record is to be granted, the appropriate Council official will normally provide access within 30 working days of receipt of the request unless, for good cause shown, he or she is unable to do so, in which case the requester shall be informed within 30 working days of receipt of the request as to those reasons and when it is anticipated that access will be granted.
(5) The Council shall not deny any request under § 1850.33 concerning the existence of records about the requester in any system of records it maintains, or any request for access to such records, unless that system is exempted from the requirements of 5 U.S.C. 552a.
(6) If the Council receives a request pursuant to § 1850.33 for access to records in a system of records it maintains which is so exempt, the appropriate Council official shall deny the request.
(b) Upon request, the appropriate Council official shall make available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3), unless that system is exempted from the requirements of 5 U.S.C. 552a.
(c) If a request for access to records is denied pursuant to paragraph (a) or (b) of this section, the determination shall specify the reasons for the denial and advise the individual how to appeal the denial in accordance with § 1850.39 of this subpart. All appeals must be submitted in writing to the General Counsel at
(d) Nothing in 5 U.S.C. 552a or this subpart allows an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
In the event the Council receives a request pursuant to § 1850.33 for access to medical records (including psychological records) and the appropriate Council official determines disclosure could be harmful to the individual to whom they relate, he or she may refuse to disclose the records directly to the requester but shall transmit them to a physician designated by that individual.
(a) Any person who wishes to request correction or amendment of any record pertaining to him or her that is contained in a system of records maintained by the Council, shall submit that request in writing in accordance with the instructions set forth in the system notice for that system of records. If the request is submitted by mail, the envelope should be clearly labeled “Personal Information Amendment.” The request shall include:
(1) The name of the individual making the request;
(2) The name of the system of records as set forth in the system notice to which the request relates;
(3) A description of the nature (
(4) Any other information specified in the system notice.
(b) Any person submitting a request pursuant to paragraph (a) of this section shall include sufficient information in support of that request to allow the Council to apply the standards set forth in 5 U.S.C. 552a(e) requiring the Council to maintain accurate, relevant, timely, and complete information.
(c) All requests to amend pertaining to personnel records described in § 1850.33(b) shall conform to the requirements of paragraphs (a) and (b) of this section and may be directed to the appropriate officials as indicated in § 1850.33(b). Such requests may also be directed to the system manager specified in the OPM's systems notices.
(d) Any person whose request under paragraph (a) of this section is denied may appeal that denial in accordance with § 1850.39.
(a) When the Council receives a request for amendment or correction under § 1850.37(a), the appropriate Council official shall acknowledge that request in writing within 10 working days of receipt. He or she shall promptly either:
(1) Determine to grant all or any portion of a request for correction or amendment; and:
(i) Advise the individual of that determination;
(ii) Make the requested correction or amendment; and
(iii) Inform any person or agency outside the Council to whom the record has been disclosed, and where an accounting of that disclosure is maintained in accordance with 5 U.S.C. 552a(c), of the occurrence and substance of the correction or amendments; or
(2) Inform the requester of the refusal to amend the record in accordance with the request; the reason for the refusal; and the procedures whereby the requester can appeal the refusal to the General Counsel of the Council in accordance with § 1850.39.
(b) If the Council official informs the requester of the determination within the 10-day deadline, a separate acknowledgement is not required.
(c) In conducting the review of a request for correction or amendment, the Council official shall be guided by the requirements of 5 U.S.C. 552a(e).
(d) In the event that the Council receives a notice of correction or amendment from another agency that pertains to records maintained by the Council, the Council shall make the appropriate correction or amendment to its records and comply with paragraph (a)(1)(iii) of this section.
(e) Requests for amendment or correction of records maintained in the government-wide systems of records listed in § 1850.35(c) shall be governed by the appropriate agency's regulations cited in that paragraph.
(a) If a request for correction or amendment of a record in a system of records maintained by the Council is denied, the requester may appeal the determination in writing to the General Counsel at
(b) The General Counsel shall make a final determination with regard to an appeal submitted under paragraph (a) of this section not later than 30 working days from the date on which the individual requests a review, unless for good cause shown, this 30-day period is extended and the requester is notified of the reasons for the extension and of the estimated date on which a final determination will be made. Such extensions will be used only in exceptional circumstances and will not normally exceed 30 working days.
(c) In conducting the review of an appeal submitted under paragraph (a) of this section, the General Counsel shall be guided by the requirements of 5 U.S.C. 552a(e).
(d) If the General Counsel determines to grant all or any portion of a request on an appeal submitted under paragraph
(e) If the General Counsel determines in accordance with paragraphs (b) and (c) of this section not to grant all or any portion of a request on an appeal submitted under paragraph (a) of this section, he or she shall inform the requester:
(1) Of this determination and the reasons for it;
(2) Of the requester's right to file a concise statement of reasons for disagreement with the determination of the General Counsel;
(3) That such statements of disagreement will be made available to anyone to whom the record is subsequently disclosed, together with (if the General Counsel deems it appropriate) a brief statement summarizing the General Counsel's reasons for refusing to amend the record;
(4) That prior recipients of the disputed record will be provided with a copy of the statement of disagreement together with (if the General Counsel deems it appropriate) a brief statement of the General Counsel's reasons for refusing to amend the record, to the extent that an accounting of disclosure is maintained under 5 U.S.C. 552a(c); and
(5) Of the requester's right to file a civil action in Federal district court to seek a review of the determination of the General Counsel in accordance with 5 U.S.C. 552a(g).
(f) The General Counsel shall ensure that any statements of disagreement submitted by a requestor are made available or distributed in accordance with paragraphs (e)(3) and (4) of this section.
The Counsel shall not disclose any record which is contained in a system of records it maintains, by any means of communication to any person or to another agency, except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains, unless the disclosure is authorized by one or more provisions of 5 U.S.C. 552a(b).
(a) No fee shall be charged for searches necessary to locate records. No charge shall be made if the total fees authorized are less than $1.00. Fees shall be charged for services rendered under this subpart as follows:
(1) For copies made by photocopy—$0.05 per page (maximum of 10 copies). For copies prepared by computer, such as tapes or printouts, the Council will charge the direct cost incurred by the agency, including operator time. For other forms of duplication, the Council will charge the actual costs of that duplication.
(2) For attestation of documents—$25.00 per authenticating affidavit or declaration.
(3) For certification of documents—$50.00 per authenticating affidavit or declaration.
(b) All required fees shall be paid in full prior to issuance of requested copies of records. Requestors must pay fees by check or money order made payable to the “Treasury of the United States.”
The criminal penalties which have been established for violations of the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). Penalties are applicable to any officer or employee of the Council; to contractors and employees of such contractors who enter into contracts with the Council, and who are considered to be employees of the Council within the meaning of 5 U.S.C. 552a(m); and to any person who knowingly and willfully requests or obtains any record concerning an individual from the Council under false pretenses.
Office of Acquisition Policy, General Services Administration (GSA).
Proposed rule; withdrawal.
GSA has decided to withdraw GSAR Case 2008–G509; Rewrite of General Services Acquisition Regulation (GSAR) Part 536, Construction and Architect-Engineer Contracts. This rule is being withdrawn because the General Services Administration believes that an agency review of the current implementation plan for this GSAR case is appropriate to address the variety of issues included in the GSAR Part 536 Rewrite and to address strong stakeholder interest.
For clarification about content, contact Ms. Christina Mullins, General Services Acquisition Policy Division, GSA, by phone at 202–969–4066 or by email at
GSA has decided to withdraw GSAR Case 2008–G509; Rewrite of GSAR Part 536, Construction and Architect-Engineer Contracts, which was published in the
This rule was a result of the GSA Acquisition Manual (GSAM) Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR and implement streamlined and innovative acquisition procedures. This rule proposed amendments to the GSAR to update text addressing GSAR Part 536: Subpart 536.101, Applicability; Subpart 536.201, Evaluation of Contractor Performance; Subpart 536.202, Specifications; Subpart 536.270, Exercise of Options; Subpart 536.271, Project Labor Agreements; Subpart 536.5, Contract Clauses; and Subpart 536.602, Selection of Firms for Architect-Engineer Contracts.
GSA is opening a series of new GSAR cases to separately address these issues and update the GSAM Part 536 coverage. The new GSAR cases will focus on the areas that require immediate modernization to position GSA to meet current and future needs of contracting activities.
Government procurement.
Forest Service, USDA.
Notice of Intent to revise the Cibola National Forest Mountain Ranger Districts Land and Resource Management Plan and prepare an associated Environmental Impact Statement.
As directed by the National Forest Management Act, the USDA Forest Service is revising the existing Cibola Land and Resource Management Plan (hereafter referred to as Forest Plan) through development of an associated National Environmental Policy Act (NEPA) Environmental Impact Statement (EIS). This notice describes the documents (assessment Report, summaries of public meetings, preliminary needs-for-change statements) available for review and how to obtain them; summarizes the needs for change to the existing Forest Plan; provides information concerning public participation and engagement, including the process for submitting comments; provides an estimated schedule for the planning process, including the time available for comments, and includes the names and addresses of agency contacts who can provide additional information.
Comments concerning the Needs for Change and Proposed Action provided in this notice will be most useful in the development of the revised plan and draft EIS if received by April 3, 2015. The agency expects to release a draft revised plan and draft EIS, developed through a collaborative public engagement process, by late Fall 2015 or Winter 2015/2016 and a final revised plan and final EIS by Summer 2017.
Send written comments to: Forest Planner, Cibola National Forest and National Grasslands, 2113 Osuna Rd. NE., Albuquerque, NM 87113.
To learn of locations of meetings and related information or to request copies of documents, go to
Champe Green, Forest Planner, Cibola National Forest and National Grasslands, Forest Service, USDA; 505–346–3900.
Elaine Kohrman, Forest Supervisor, Cibola National Forest and National Grasslands, 2113 Osuna Rd. NE., Albuquerque, NM 87113.
The Cibola National Forest is preparing an EIS to revise the existing Forest Plan. The EIS process is meant to inform the Forest Supervisor so she can decide which alternative best maintains and restores National Forest System terrestrial and aquatic resources while providing ecosystem services and multiple uses, as required by the National Forest Management Act and the Multiple Use Sustained Yield Act.
The revised Forest Plan will describe the strategic intent of managing the Forest for the next 10 to 15 years and will address the identified needs for change to the existing land management plans. The revised Forest Plan will provide management direction in the form of desired conditions, objectives, standards, guidelines, and suitability of lands. It will identify delineation of new management areas and geographic areas across the Forest; identify the timber sale program quantity; make recommendations to Congress for Wilderness designation; and list rivers and streams eligible for inclusion in the National Wild and Scenic Rivers System. The revised Forest Plan will also provide a description of the plan area's distinctive roles and contributions within the broader landscape, identify watersheds that are a priority for maintenance or restoration, include a monitoring program, and contain information reflecting expected possible actions over the life of the plan.
The revised Forest Plan will provide strategic direction and a framework for decision making during the life of the plan, but it will not make site-specific project decisions and will not dictate day-to-day administrative activities needed to carry on the Forest Service's internal operations. The authorization of project-level activities will be based on the guidance/direction contained in the revised plan, but will occur through subsequent project specific decision-making, including NEPA analysis.
The revised Forest Plan will provide broad, strategic guidance designed to supplement, not replace, overarching laws and regulations. Though strategic guidance will be provided, no decisions will be made regarding the management of individual roads or trails, such as those that might be associated with a Travel Management plan under
According to the National Forest Management Act, forest plans are to be revised on a 10 to 15 year cycle. The purpose and need for revising the current Forest Plan is (1) the Forest Plan is over 29 years old and 14 years beyond the intended plan period in NFMA, (2) to address changes in economic, social, and ecological conditions, new policies and priorities, and new information based on monitoring and scientific research, and (3) to address the preliminary needs for change to the existing plan, which are summarized below. Extensive public and employee involvement, along with a science-based assessment of the conditions and trends of the Forest's ecological, social, and economic resources, have helped to identify theses preliminary needs for change to the existing Forest Plan.
The Proposed Action is to revise the Forest Plan to address these identified needs for change to the existing Forest Plan. Alternatives to the Proposed Action will be developed to address the
What follows is a summary of the preliminary needs for change. A more fully developed description of the preliminary needs for change, is available for review on the plan revision Web site at:
There is a need to address, either by plan direction or other plan content, how all resource management should be prioritized given varying levels of funding.
There is a need to redraw the management area configuration used in the 1985 Plan. There is a need to update plan component language for the resources, goods, and services provided by the Cibola, and to remove plan components that are redundant with existing law, regulation, or policy.
There is a need to better recognize and potentially enhance the role of the Cibola National Forest in supporting local economies through both commodity production and services-such as recreation and tourism.
There is a need to include plan direction addressing potential climate change effects and invasive species on the Cibola and to include a plan monitoring program.
There is a need to provide direction for an integrated resource approach to the use of planned fire and to address fuel accumulations in the Wildland Urban Interface (WUI).
There is a need to provide direction for achieving sustainability and resiliency for and minimizing risks to vegetation community composition and structure and for restoring natural disturbance cycles where appropriate.
There is a need to provide direction to promote the achievement and maintenance of satisfactory soil condition.
There is a need to provide updated management direction for the protection, maintenance, and restoration of riparian vegetation and channel morphology in the plan area and for restoration of priority watersheds.
There is a need to provide direction on the sustainable management of groundwater, springs, wetlands, riparian areas, and perennial waters and their interconnections.
There is a need to update plan direction on providing a sustainable water supply for multiple uses (wildlife, livestock, recreation, and mining) and public water supplies.
There is a need to provide direction pertinent to riparian management zones around all lakes, perennial and intermittent streams, and open water wetlands.
There is a need to update direction addressing air quality and forest management.
There is a need to develop plan direction to contribute to the recovery and conservation of federally recognized species, maintain viable populations of species of conservation concern, and maintain common and abundant species within the plan area.
There is a need to provide direction addressing habitat(s) for plant and animal species important to tribes and other traditional communities.
There is a need to provide direction for managing aquatic passage and terrestrial habitat connectivity.
There is a need to update direction on the stabilization and preservation of historic properties and address the role of management of historic properties in economic development.
There is a need to update management direction for American Indian and non-Indian traditional cultural properties and sacred sites.
There is a need to provide direction addressing management of historic and contemporary cultural uses by federally recognized Indian tribes and traditional communities not considered under tribal relations.
There is a need to address, at either the management or geographic area scale, the inventory and management of historic properties and other cultural resources and uses.
There is a need to provide direction that addresses the alignment of management of historic properties and landscapes, sacred sites, contemporary uses, and tribal cultural needs with other resource management objectives (particularly but not limited to ecosystem restoration). There is a need to provide direction on the identification and documentation of historic properties at risk of damage or destruction from catastrophic wildland fire.
There is a need to update direction addressing immitigable adverse effects to historic properties.
There is a need to update direction addressing consistency of activities with legally mandated trust responsibilities to tribes.
There is a need to update direction regarding sacred sites, sacred places, natural and cultural resources important to tribes, and requests for reburial of human remains and cultural items.
There is a need to update plan direction regarding administration of temporary closure orders to ensure privacy for tribes engaged in cultural and ceremonial activities.
There is a need to update direction on design, location, installation, maintenance, and abandonment of towers, facilities, and alternative infrastructure within communication and energy generation sites, giving due consideration to the value and importance of high places (mountaintops and ridges) that may be sacred sites or important cultural landscapes to tribes.
There is a need to provide plan direction for restoration treatments for those geographic areas and vegetation types that are most outside of the natural range of variability while considering capability of local infrastructure, contractors, and markets.
There is a need to provide direction for management and removal of miscellaneous forest products for commercial, noncommercial, tribal and/or land grant use.
There is a need to provide direction to the livestock grazing program that incorporates adaptive management toward ecosystem-based desired conditions.
There is a need to integrate sustainable recreation management with that of other Forest resources and to provide guidance for managing a sustainable trails program while addressing use conflicts.
There is a need to provide management direction on the Continental Divide National Scenic Trail.
There is a need to provide guidance for managing recreation activities that occur in areas sensitive to resource degradation or at risk due to high visitation.
There is a need to update direction on managing recreational aviation activities, caves, and recreational activities associated with wildlife, fish, and cultural/historic sites.
There is a need to update plan direction and guidance for implementing the Recreation Opportunity Spectrum classification system and incorporating scenic integrity objectives for managing scenic resources.
There is a need to update direction for managing designated Inventoried Roadless Areas, eligible Wild and Scenic Rivers, designated Research Natural Areas, and for managing designated wilderness.
There is a need to provide direction on management of areas that may be recommended for wilderness, during the interim period while Congress is considering designation.
There is a need to provide direction for areas that may be recommended for various other designations.
There is a need to update direction on the management of infrastructure and for road maintenance in watersheds identified as being impaired or at-risk.
There is a need to update direction for obtaining legal access that addresses public, private landowner, tribal, land grant, and management needs and for progressing toward a contiguity of the land base and a reduction of small unmanageable tracts.
There is a need to provide updated direction regarding management of recreational mining, mineral exploration and extraction, and the use of common minerals.
There is a need to update plan direction for managing existing or proposed transmission corridors and renewable energy generation.
There is a need to provide direction addressing safety concerns pertinent to maintenance activities associated with existing energy and communication corridors.
The Cibola NF initiated public engagement activities in October 2012 and held 29 public meetings and collaborative work sessions through July 2014 to explain the plan revision process and to solicit comments, opinions, data, and ideas from members of the public, governmental entities, tribes, land grants, and non-governmental organizations. Six of these meetings introduced and explained the Cibola's Forest Plan revision effort and called for input and data pertinent to the assessment of conditions, trends, and risks to sustainability. Ten meetings were held to explain the draft assessment report subsequent to its release in April 2014 and to solicit comments, and 13 collaborative work sessions followed, focusing on the needs for change to the 1985 Cibola Forest Plan, based on findings from the assessment and comments received. Attendance at the 29 meetings numbered approximately 600, and nearly 1,800 comment letters or forms were received either at the meetings or by email, postal mail, Web-form, or a Web-based interactive mapping tool. Comments received were displayed on Web-based public reading rooms. Public input on both the assessment report and initial needs-for-change statements was used to update both documents. Information to the public was provided by a dedicated Forest Plan revision Web page and through mailings, flyers, news releases, Twitter, and radio and television interviews. Any comments related to the Cibola's assessment report that are received following the publication of this Notice may be considered in the affected environment sections of the draft and final environmental impact statements.
Written comments received in response to this notice will be analyzed to complete the identification of the needs for change to the existing plan, further develop the proposed action (initial development of the proposed revised plan), and identify potential significant issues. Significant issues will, in turn, form the basis for developing alternatives to the proposed action. Comments on the preliminary needs for change and proposed action will be most valuable if received by April 3, 2015, and should clearly articulate the reviewer's opinions and concerns. Development of the proposed revised plan and associated EIS will occur with opportunities for public engagement throughout the revision process.
Comments received in response to this notice, including the names and addresses of those who comment, will be part of the public record. Comments submitted anonymously will be accepted and considered in the NEPA process; however, anonymous comments will not provide the Agency with the ability to provide the respondent with subsequent environmental documents. See the below Objection process material, particularly the requirements for filing an objection, for how anonymous comments are handled during the objection process. Refer to the Forest's Web site
Preparation of the revised Forest Plan for the Cibola National Forest began with the assessment of the conditions and trends of the Forest's ecological, social, and economic resources, initiated under the planning procedures contained in the 2012 Forest Service planning rule (36 CFR 219 (2012)).
No permits or licenses are needed for the development or revision of a forest plan.
The decision to approve the revised Forest Plan for the Cibola National Forest Mountain Ranger Districts will be subject to the objection process identified in 36 CFR part 219 Subpart B (219.50 to 219.62). According to 36 CFR 219.53(a), those who may file an objection are individuals and entities who have submitted substantive formal comments related to plan revision during the opportunities provided for public comment during the planning process.
The Needs for Change documentation, the Assessment Report including specialist reports, summaries of the public meetings and public meeting materials, and public comments are posted on the Forest's Web site at:
As necessary or appropriate, the material available on this site will be further adjusted as part of the planning process using the provisions of the 2012 planning rule.
16 U.S.C. 1600–1614; 36 CFR part 219 [77 FR 21260–21273].
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of
Vessels required to have a Federal Fisheries Permit (FFP) are issued free daily fishing DFLs for harvesters and DCPLs for processors to record groundfish, Crab Rationalization Program (CR) crab, Individual Fishing Quota (IFQ) halibut, IFQ sablefish, Western Alaska Community Development Quota Program (CDQ) halibut, and prohibited species catch (PSC) information. Catcher vessels under 60 ft (18.3 m) length overall are not required to maintain DFLs. Multiple self-copy logsheets within each logbook are available for distribution to the harvester, processor, observer program, and NOAA Fisheries Office for Law Enforcement. The longline or pot gear logbooks have an additional logsheet for submittal to the IPHC.
In addition to the logbooks, this collection includes the buying station report, check-in/out for shoreside processors, product transfer report, and U.S. vessel activity report.
Revision: Paper logbooks for catcher processors with trawl gear and motherships have been discontinued and replaced by eLogs in OMB Control No. 0648–0515.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Cooperative Game Fish Tagging Program was initiated in 1971 as part of a comprehensive research program resulting from passage of Public Law 86–359, Study of Migratory Game Fish, and other legislative acts under which the National Marine Fisheries Service (NMFS) operates. The Cooperative Tagging Center attempts to determine the migration patterns of, and other biological information for, billfish, tunas, and swordfish. The fish tagging report is provided to the angler with the tags, and he/she fills out the card with the information when a fish is tagged and mails it to NMFS. Information on each species is used by NMFS to determine migratory patterns, distance traveled, stock boundaries, age, and growth. These data are necessary input for developing management criteria by regional fishery management councils, states, and NMFS.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Bureau of Industry and Security, Department of Commerce.
Notice of Foreign Availability Determination.
This notice announces that the Under Secretary for Industry and
BIS welcomes comments on this foreign availability determination on an ongoing basis. You may submit comments by any of the following methods:
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•
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Gerard J. Horner, Office of Technology Evaluation, Department of Commerce, Room 1093, 1401 Constitution Avenue NW., Washington, DC 20230, Telephone: (202) 482–2078; email:
Section 5(f) of the Export Administration Act of 1979, as amended (EAA), authorizes the Secretary of Commerce to conduct foreign availability assessments to examine and evaluate the effectiveness of U.S. export controls on certain items that are controlled for national security reasons under the Export Administration Regulations (EAR) (15 CFR parts 730–774). The Bureau of Industry and Security (BIS) has been delegated from the Secretary of Commerce the responsibility for conducting these assessments and issuing a final foreign availability determination. Part 768 of the EAR sets forth the procedures related to foreign availability assessments.
On July 16, 2014, BIS received a foreign availability submission from the Semiconductor Equipment and Materials International (SEMI) industry association, a group of companies that does business all over the world and that serve the manufacturing supply chain for the micro- and nano-electronics industries. SEMI's July 16, 2014 submission asserts the foreign availability of anisotropic plasma dry etching equipment in China. This type of semiconductor etching equipment is controlled for national security reasons under Export Control Classification Number (ECCN) 3B001.c on the Commerce Control List (CCL). It is used in the process for producing dual-use semiconductor devices such as flash memories, microwave monolithic integrated circuits, transistors, and analog-to-digital-converters. These devices are used in civil and military applications such as radars, point-to-point radio communications, microprocessors, cellular infrastructure, and satellite communications. The national security control BIS has applied to anisotropic plasma dry etching equipment implements the Wassenaar Arrangement's Dual-Use List 3.B.1.c control. SEMI's submission asserts that anisotropic plasma dry etch equipment of comparable quality to that subject to control under ECCN 3B001.c is available-in-fact from China in sufficient quantities to render the U.S. export control of the equipment ineffective.
After reviewing SEMI's submission, on September 8, 2014, BIS published in the
After reviewing the assessment and recommendation, I determined that anisotropic plasma dry etching equipment controlled for national security reasons under ECCN 3B001.c on the CCL is foreign available to China. Consequently, BIS has submitted a proposal to the Department of State to remove the Wassenaar Arrangement's Dual-Use List 3.B.1.c control.
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) Tilefish Advisory Panel will hold a public meeting.
The meeting will be held Tuesday, February 24, 2015, from 9 a.m. until noon.
The meeting will be held via Webinar with a telephone-only connection option.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526–5255. The Council's Web site,
The purpose of the meeting is to create a fishery performance report by the Council's Golden Tilefish Advisory Panel (AP). The intent of this report is to facilitate a venue for structured input from the Advisory Panel members for the Golden Tilefish specifications process, including recommendations by the Council and its Scientific and Statistical Committee (SSC).
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, February 24, 2015 at 9 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The committee will discuss comments on Omnibus Essential Fish Habitat Amendment 2. Written public comments were submitted between October 10, 2014 and January 8, 2015 and in-person comments were provided at twelve public hearings held during November, December, and January. They will also begin the process of developing final preferred alternative recommendations for the full Council. They will discuss other business as necessary.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during 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 Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Gulf of Mexico Fishery Management Council will hold a meeting of the Ecosystem Scientific and Statistical Committee.
The meeting will be held from9 a.m. until 5 p.m. on Wednesday, February 25, 2015.
The meeting will be held at the Gulf of Mexico Fishery Management Council Office, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607.
Dr. Morgan Kilgour, Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630; fax: (813) 348–1711; email:
The items of discussion on the agenda are as follows:
For meeting materials see folder “Ecosystem Scientific and Statistical Committee meeting—2015–02” on Gulf Council file server. To access the file server, the URL is
The meeting will be Webcast over the Internet. A link to the Webcast will be available on the Council's Web site,
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
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
DoD.
Meeting notice.
The Department of Defense is publishing this notice to announce a meeting of the DoD Board of Actuaries. This meeting will be open to the public.
Thursday, July 16, from 1:00 p.m. to 5:00 p.m. and Friday, July 17, 2015, from 10:00 a.m. to 1:00 p.m.
4800 Mark Center Drive, Conference Room 4, Level B1, Alexandria, VA 22350.
Kathleen Ludwig at the Defense Human Resources Activity, DoD Office of the Actuary, 4800 Mark Center Drive, STE 05E22, Alexandria, VA 22350–7000. Phone: 571–372–1993. Email:
This meeting is being held under the provision of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b as amended), and 41 CFR 102–3.150.
1. Briefing on Investment Experience.
2. September 30, 2014, Valuation Proposed Economic Assumptions *.
3. September 30, 2014, Valuation Proposed Methods and Assumptions—Reserve Programs *.
4. September 30, 2014, Valuation Proposed Methods and Assumptions—Active Duty Programs *.
5. Developments in Education Benefits.
1. Briefing on Investment Experience.
2. September 30, 2014, Valuation of the Military Retirement Fund *.
3. Proposed Methods and Assumptions for September 30, 2015 Valuation of the Military Retirement Fund *.
4. Proposed Methods and Assumptions for September 30, 2014, Voluntary Separation Incentive (VSI) Fund Valuation *.
5. Recent and Proposed Legislation.
* Board approval required.
Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165, and the availability of space, this meeting is open to the public. Seating is on a first come basis. The Mark Center is an annex of the Pentagon. Those without a valid DoD Common Access Card must contact Kathleen Ludwig at 571–372–1993 no later than June 16, 2015. Failure to make the necessary arrangements will result in building access being denied. It is strongly recommended that attendees plan to arrive at the Mark Center at least 30 minutes prior to the start of the meeting.
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written comments to the Board about its mission and topics pertaining to this public meeting.
Committee's Designated Federal Officer or Point of Contact: Persons desiring to attend the DoD Board of Actuaries meeting or make an oral presentation or submit a written statement for consideration at the meeting must notify Kathleen Ludwig at 571- 372–1993, or
National Advisory Committee on Institutional Quality and Integrity (NACIQI), Office of Postsecondary Education, Department of Education.
U.S. Department of Education, Office of Postsecondary Education, 1990 K Street NW., Room 8072, Washington, DC 20006.
Opportunity for the public to make written comments concerning the NACIQI Policy Recommendations Report dated January 2, 2015, under Section 114(d)(2)(B) of the Higher Education Act (HEA) of 1965, as amended, 20 U.S.C. § 1011c(d)(2)(B).
• The establishment and enforcement of the criteria for recognition of accrediting agencies or associations under Subpart 2, Part H, Title IV, of the HEA, as amended.
• The recognition of specific accrediting agencies or associations or a specific State approval agency.
• The preparation and publication of the list of nationally recognized accrediting agencies and associations.
• The eligibility and certification process for institutions of higher education under Title IV, of the HEA, together with recommendations for improvement in such process.
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions.
• Any other advisory function relating to accreditation and institutional eligibility that the Secretary may prescribe.
This notice invites the public to submit written comments concerning
on January 23, 2015, and invites written comments. Comments must be received by February 28, 2015, in the
Carol Griffiths, Executive Director, NACIQI, U.S. Department of Education, 1990 K Street NW., Room 8073, Washington, DC 20006–8129, telephone: (202) 219–7035, fax: (202) 502–7874, or email
Section 114(d)(2)(B) of the Higher Education Act (HEA) of 1965, as amended, 20 U.S.C. 1011c(d)(2)(B).
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
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g.
h.
i.
j.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on January 30, 2015 pursuant to section 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 and sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824(e) and 825(e), Essential Power Rock Springs, LLC, Essential Power OPP, LLC, and Lakewood Cogeneration, L.P. (Complainants) filed a formal complaint against PJM Interconnection, LLC (Respondent or PJM) challenging the application of certain PJM rules and notices that required generators to submit certain binding elections based on the proposed regulatory changes for which the Respondent is seeking approval in its December 12, 2014 Capacity Performance Filing, as more fully explained in the complaint.
The Complainants certify that copies of the complaint were served on the contacts for the Respondent as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
With respect to an order issued by the Commission on February 2, 2015 in the above-captioned docket, with the exceptions noted below, the staff of the Office of Enforcement are designated as non-decisional in deliberations by the Commission in this docket. Accordingly, pursuant to 18 CFR 385.2202 (2014), they will not serve as advisors to the Commission or take part in the Commission's review of any offer of settlement. Likewise, as non-decisional staff, pursuant to 18 CFR 385.2201 (2014), they are prohibited from communicating with advisory staff concerning any deliberations in this docket.
Exceptions to this designation as non-decisional are:
Rule 2010 of the Federal Energy Regulatory Commission's (Commission)
The Commission staff is consulting with the Kentucky State Historic Preservation Officer and the Advisory Council on Historic Preservation (Advisory Council) pursuant to the Advisory Council's regulations, 36 CFR part 800, implementing section 106 of the National Historic Preservation Act,
On November 21, 2013, Commission staff established a restricted service list for the Heidelberg Hydroelectric Project. Since that time, changes have occurred and therefore, the restricted service list is revised as follows:
Replace “Jill Howe, Kentucky Heritage Council” with “Kary Stackelbeck, or Representative, Kentucky Heritage Council.”
Rule 2010 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.2010, provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding. The restricted service list should contain the names of persons on the service list who, in the judgment of the decisional authority establishing the list, are active participants with respect to the phase or issue in the proceeding for which the list is established.
The Commission staff is consulting with the Kentucky State Historic Preservation Officer and the Advisory Council on Historic Preservation (Advisory Council) pursuant to the Advisory Council's regulations, 36 CFR part 800, implementing section 106 of the National Historic Preservation Act,
On November 21, 2013, Commission staff established a restricted service list for the Ravenna Hydroelectric Project. Since that time, changes have occurred and therefore, the restricted service list is revised as follows:
Replace “Jill Howe, Kentucky Heritage Council” with “Kary Stackelbeck, or Representative, Kentucky Heritage Council.”
As announced in the Notices issued on December 9, 2014
If you have not already done so, registration for the National Overview technical conference is available at
The Commission will post information on the technical conferences on the Calendar of Events on the Commission's Web site,
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about the technical conferences, please contact:
Logistical Information, Sarah McKinley, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502–8368,
Legal Information, Alan Rukin, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502–8502,
Technical Information, Matthew Jentgen, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502–8725,
Technical Information, Michael Gildea, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502–8420,
Western Area Power Administration, DOE.
Notice of proposed extension of electric service rate-setting formula and adjustment to base charge and rates.
The Western Area Power Administration (Western) is proposing to extend the existing rate-setting formula for the Boulder Canyon Project (BCP) through September 30, 2020, and adjust the annual calculation for fiscal year (FY 2016) Base Charge and Rates under proposed Rate Schedule BCP–F9 (Proposed Base Charge and Rates). The existing Rate Schedule BCP–F8 expires on September 30, 2015. This notice of proposed extension of the electric service rate-setting formula and adjustment of the base charge and rates is issued pursuant to 10 CFR part 903.23(a) and 10 CFR part 904. Publication of this
The consultation and comment period begins today and will end May 11, 2015. Western will hold a public information forum on April 1, 2015, beginning at 10:30 a.m. MST, in Phoenix, Arizona. Western will accept oral and written comments at a public comment forum on April 29, 2015, beginning at 10:30 a.m. MST, in Phoenix, Arizona. Western will also accept written comments any time during the consultation and comment period.
The public information forum and public comment forum will be held at the Desert Southwest Regional Customer Service Office, located at 615 South 43rd Avenue, Phoenix, Arizona, on the dates cited above. Written comments should be sent to Mr. Ronald E. Moulton, Desert Southwest Regional Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005–6457, email
Mr. Jack Murray, Rates Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005–6457, (602) 605–2442, email
The existing Rate Schedule BCP–F8, Rate Order No. WAPA–150 was approved by the Federal Energy Regulatory Commission (FERC) for the period beginning October 1, 2010, and ending September 30, 2015.
Western proposes to extend the existing electric service rate-setting formula through September 30, 2020, under Rate Order No. WAPA–171, and seek approval of the annual calculation for the FY 2016 Proposed Base Charge and Rates. Under Rate Schedule BCP–F9, Rate Order No. WAPA–171, the Proposed Base Charge and Rates for BCP electric service are expected to increase as a result of projected replacements costs and visitor center costs. The following table lists the Proposed Base Charge and Rates, however, these amounts will change based on actual data published in the FY 2014 financial statements, which are not yet available.
Since the proposed rates constitute a major adjustment as defined by 10 CFR part 903, Western will hold both a public information forum and a public comment forum. Western will review all timely public comments and make amendments or adjustment to the proposal, as appropriate, consistent
Western is establishing the electric service Base Charge and Rates for BCP under the Department of Energy Organization Act (42 U.S.C. 7152); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent laws, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)); and other acts that specifically apply to the projects involved.
By Delegation Order No. 00–037.00A, effective October 25, 2013, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to the Administrator of Western; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand, or to disapprove such rates to the FERC. Existing Department of Energy (DOE) procedures for public participation in power rate adjustments (10 CFR part 903) were published on September 18, 1985.
Access to Western facilities is controlled. If you are a U.S. citizen, please be sure to bring an official form of picture identification (that meets the requirement of the Real ID Act), such as a driver's license, U.S. passport, U.S. Government ID, or U.S. Military ID, which you will be asked to show prior to signing in at Western.
If you are a foreign national and plan to attend, please contact Mr. Jack Murray, Rates Manager, (602) 605–2442, email
All brochures, studies, comments, letters, memorandums, and other documents that Western initiated or used to develop the proposed base charge and rates are available for inspection and copying at the Desert Southwest Customer Service Regional Office, located at 615 South 43rd Avenue, Phoenix, Arizona. Many of these documents and supporting information are also available on Western's Web site at:
In compliance with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321–4347
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Environmental Protection Agency.
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Background Checks for Contractor Employees (Renewal)” (EPA ICR No. 2159.06, OMB Control No. 2030–0043) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before April 10, 2015.
Submit your comments, referencing Docket ID No. EPA–HQ–OARM–2014–0857 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Dianne Lyles, Policy Training and Oversight Division, Office of Acquisition Management (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564–6111; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Office of External Affairs and Environmental Education, Environmental Protection Agency.
Notice.
The National Environmental Education and Training Foundation (doing business as The National Environmental Education Foundation or NEEF) was created by Section 10 of Public Law 101–619, the National Environmental Education Act of 1990. It is a private 501(c)(3) non-profit organization established to promote and support education and training as necessary tools to further environmental protection and sustainable, environmentally sound development. It provides the common ground upon which leaders from business and industry, all levels of government, public interest groups, and others can work cooperatively to expand the reach of environmental education and training programs beyond the traditional classroom. The Foundation promotes innovative environmental education and training programs such as environmental education for medical healthcare providers and broadcast meteorologists; it also develops partnerships with government and other organizations to administer projects that promote the development of an environmentally literal public. The Administrator of the U.S. Environmental Protection Agency, as required by the terms of the Act, announces the following appointment to the National Environmental Education Foundation Board of Directors. The appointee is Raul Perea-Henze, M.D., M.P.H., managing director of HORUS Advisors as a strategy advisor in healthcare, global affairs and government relations.
For information regarding this Notice of Appointment, please contact Mr. Brian Bond, Senior Advisor to the Administrator for Public Engagement, U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. General information concerning NEEF can be found on their Web site at:
Great care has been taken to assure that this new appointee not only has the highest degree of expertise and commitment, but also brings to the Board diverse points of view relating to environmental education. This appointment is a four-year term which may be renewed once for an additional four years pending successful re-election by the NEEF nominating committee.
This appointee will join the current Board members which include:
• Decker Anstrom (NEEF Chairman) Former U.S. Ambassador, Retired Chairman, The Weather Channel Companies
• Trish Silber (NEEF Vice Chair) President, Aliniad Consulting Partners, Inc.
• Diane Wood (NEEF Secretary) President, National Environmental Education Foundation
• Carlos Alcazar, Founder and Chairman, Culture ONE World
• Megan Reilly Cayten, Co-Founder and Chief Executive Officer, Catrinka, LLC
• Philippe Cousteau, Co-Founder and CEO, EarthEcho International
• David M. Kiser, Vice President, Environment, Health, Safety and Sustainability, International Paper
• Wonya Lucas, President, Lucas Strategic Consulting
• Shannon Schuyler, Principal, Corporate Responsibility Leader, PricewaterhouseCoopers (PwC)
• Jacqueline M. Thomas, Vice President of Corporate Responsibility, Toyota Motor Sales USA Inc.
Section 10(a) of the National Environmental Education Act of 1990 mandates a National Environmental Education Foundation. The Foundation is established in order to extend the contribution of environmental education and training to meeting critical environmental protection needs, both in this country and internationally; to facilitate the cooperation, coordination, and contribution of public and private resources to create an environmentally advanced educational system; and to foster an open and effective partnership among Federal, State, and local government, business, industry, academic institutions, community based environmental groups, and international organizations.
The Foundation is a charitable and nonprofit corporation whose income is exempt from tax, and donations to which are tax deductible to the same extent as those organizations listed pursuant to section 501(c) of the Internal Revenue Code of 1986. The Foundation is not an agency or establishment of the United States. The purposes of the Foundation are—
(A) Subject to the limitation contained in the final sentence of subsection (d) herein, to encourage, accept, leverage, and administer private gifts for the benefit of, or in connection with, the environmental education and training activities and services of the United States Environmental Protection Agency;
(B) to conduct such other environmental education activities as will further the development of an environmentally conscious and responsible public, a well-trained and environmentally literate workforce, and an environmentally advanced educational system;
(C) to participate with foreign entities and individuals in the conduct and coordination of activities that will further opportunities for environmental education and training to address environmental issues and problems involving the United States and Canada or Mexico.
The Foundation develops, supports, and/or operates programs and projects to educate and train educational and environmental professionals, and to assist them in the development and delivery of environmental education and training programs and studies.
The Foundation has a governing Board of Directors (hereafter referred to in this section as `the Board'), which consists of 13 directors, each of whom shall be knowledgeable or experienced in the environment, education and/or training. The Board oversees the activities of the Foundation and assures that the activities of the Foundation are consistent with the environmental and education goals and policies of the Environmental Protection Agency and with the intents and purposes of the Act. The membership of the Board, to the extent practicable, represents diverse points of view relating to environmental education and training. Members of the Board are appointed by the Administrator of the Environmental Protection Agency.
Within 90 days of the date of the enactment of the National Environmental Education Act, and as appropriate thereafter, the Administrator will publish in the
Dr. Perea-Henze, M.D., M.P.H. is currently managing director of HORUS Advisors as a strategy advisor in healthcare, global affairs and government relations.
He worked in the private sector, as senior executive at Merck & Co., Inc. and Pfizer Inc. Among his many responsibilities at these companies he assisted in shaping corporate responsibility, philanthropy and external affairs participating in committees at the Institute of Medicine, World Medical Association, The Clinton Global Initiative and the Gates Foundation.
In the public sector, he served as assistant secretary for policy and planning at the U.S. Department of Veterans Affairs where he had direct oversight for a $9 billion portfolio of priority programs. Before joining the VA in 2010, he was an advisor to the Obama Presidential Transition Team. He was deputy assistant secretary for management and budget at the U.S. Department of Commerce from 1999 to 2001.
He has a medical degree from the University of Chihuahua in Mexico and a master's degree in public health from Yale University. We believe he will be a great addition to the NEEF board and we respectfully submit his name for appointment to the NEEF Board of Directors.
Office of External Affairs and Environmental Education, Environmental Protection Agency.
Notice.
The National Environmental Education and Training Foundation (doing business as The National Environmental Education Foundation or NEEF) was created by Section 10 of Public Law 101–619, the National Environmental Education Act of 1990. It is a private 501(c)(3) non-profit organization established to promote and support education and training as necessary tools to further environmental protection and sustainable, environmentally sound development. It provides the common ground upon which leaders from business and industry, all levels of government, public interest groups, and others can work cooperatively to expand the reach of environmental education and training programs beyond the traditional classroom. The Foundation promotes innovative environmental education and training programs such as environmental education for medical healthcare providers and broadcast meteorologists; it also develops partnerships with government and other organizations to administer projects that promote the development of an environmentally literal public. The Administrator of the U.S. Environmental Protection Agency, as required by the terms of the Act, announces the following appointment to the National Environmental Education Foundation Board of Directors. The appointee is George Basile, Ph.D., a Professor in the School of Sustainability at Arizona State University (ASU), a Senior Sustainability Scientist in ASU's Global Institute of Sustainability and Affiliate Professor in the School on Public Affairs.
For information regarding this Notice of Appointment, please contact Mr. Brian Bond, Senior Advisor to the Administrator for Public Engagement, U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. General information concerning NEEF can be found on their Web site at:
This appointee will join the current Board members which include:
• Decker Anstrom (NEEF Chairman) Former U.S. Ambassador, Retired Chairman, The Weather Channel Companies
• Trish Silber (NEEF Vice Chair) President, Aliniad Consulting Partners, Inc.
• Diane Wood (NEEF Secretary) President, National Environmental Education Foundation
• Carlos Alcazar, Founder and Chairman, Culture ONE World
• Megan Reilly Cayten, Co-Founder and Chief Executive Officer, Catrinka, LLC
• Philippe Cousteau, Co-Founder and CEO, EarthEcho International
• David M. Kiser, Vice President, Environment, Health, Safety and Sustainability, International Paper
• Wonya Lucas, President, Lucas Strategic Consulting
• Shannon Schuyler, Principal, Corporate Responsibility Leader, PricewaterhouseCoopers (PwC)
• Jacqueline M. Thomas, Vice President of Corporate Responsibility, Toyota Motor Sales USA Inc.
The Foundation is a charitable and nonprofit corporation whose income is exempt from tax, and donations to which are tax deductible to the same extent as those organizations listed pursuant to section 501(c) of the Internal Revenue Code of 1986. The Foundation is not an agency or establishment of the United States. The purposes of the Foundation are—
(A) subject to the limitation contained in the final sentence of subsection (d) herein, to encourage, accept, leverage, and administer private gifts for the benefit of, or in connection with, the environmental education and training activities and services of the United States Environmental Protection Agency;
(B) to conduct such other environmental education activities as will further the development of an environmentally conscious and responsible public, a well-trained and environmentally literate workforce, and an environmentally advanced educational system;
(C) to participate with foreign entities and individuals in the conduct and coordination of activities that will further opportunities for environmental education and training to address environmental issues and problems involving the United States and Canada or Mexico.
The Foundation develops, supports, and/or operates programs and projects to educate and train educational and environmental professionals, and to assist them in the development and delivery of environmental education and training programs and studies.
The Foundation has a governing Board of Directors (hereafter referred to in this section as `the Board'), which consists of 13 directors, each of whom shall be knowledgeable or experienced in the environment, education and/or training. The Board oversees the activities of the Foundation and assures that the activities of the Foundation are consistent with the environmental and education goals and policies of the Environmental Protection Agency and with the intents and purposes of the Act. The membership of the Board, to the extent practicable, represents diverse points of view relating to environmental education and training. Members of the Board are appointed by the Administrator of the Environmental Protection Agency.
Within 90 days of the date of the enactment of the National Environmental Education Act, and as appropriate thereafter, the Administrator will publish in the
Dr. Basile is currently a Professor in the School of Sustainability at Arizona State University (ASU), a Senior Sustainability Scientist in ASU's Global Institute of Sustainability and Affiliate Professor in the School of Public Affairs. He is also the Swedish Knowledge Foundation's Distinguished International Guest Professor of Sustainability-Driven Innovation. Dr. Basile's work has reframed sustainability as a “decision space” and focuses on how to plan, lead and act strategically for emerging sustainability opportunities and challenges. Dr. Basile has been the Executive Director of the ASU Decision Theater, a unique systems exploration and application center. He has also served as a faculty affiliate and advisor to the Sustainability Consortium, a group of over 80 global businesses, universities and NGOs developing science-based standards for sustainable products. At ASU, Dr. Basile's activities include developing novel insights, strategic methods and tools that create solutions for sustainability including novel educational programs in sustainability and leadership in both the United States and the European Union and at both the undergraduate and graduate levels.
Dr. Basile holds a B.S. in Physics from University of California, Irvine and a Ph.D. in Biophysics from University of California, Berkeley. His publications include a three‐volume edited set
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before March 11, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418–2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
This revised information collection reflects changes in rules applicable to Part 22 800 MHz Cellular Radiotelephone (“Cellular”) Service licensees and applicants, as adopted by the Commission in a Report and Order (“R&O”) on November 7, 2014 (WT Docket No. 12–40; RM No. 11510; FCC 14–181). By the R&O, the Commission eliminates or streamlines certain Cellular Service filing requirements, thereby reducing the information collection burdens for Cellular Service respondents.
The purpose of this form is to obtain information sufficient to identify the parties to the proposed assignment or transfer, establish the parties' basic eligibility and qualifications, classify the filing, and determine the nature of the proposed service. Various technical schedules are required along with the main form applicable to Auctioned Services, Partitioning and Disaggregation, Undefined Geographical
This revised information collection reflects changes in rules applicable to Part 22 800 MHz Cellular Radiotelephone (“Cellular”) Service licensees and applicants, as adopted by the Commission in a Report and Order (“R&O”) on November 7, 2014 (WT Docket No. 12–40; RM No. 11510; FCC 14–181). In addition to other rule revisions that do not affect this information collection, the Commission adopted a revised rule Section 22.948(a) to require the electronic submission of maps (in GIS format and PDF) when the Cellular applicant submits Form 603 to apply for Partitioning and Disaggregation. This requirement very slightly increases the total annual burden hours for this information collection. FCC Form 603 itself is not being revised.
This revised information collection reflects changes in rules applicable to Part 22 800 MHz Cellular Radiotelephone (“Cellular”) Service licensees and applicants, as adopted by the Commission in a Report and Order (“R&O”) on November 7, 2014 (WT Docket No. 12–40; RM No. 11510; FCC 14–181). In addition to other rule revisions that do not affect this information collection, the Commission adopted a revised rule Section 22.948(d) to require the electronic submission of maps (in GIS format and PDF) when the Cellular Service applicant submits Form 608.
The requirement very slightly increases the total annual burden hours for this information collection. FCC Form 608 itself is not being revised.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or the Commission)
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before April 10, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before April 10, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
Federal Communications Commission.
Notice; one new Privacy Act system of records.
The Federal Communications Commission (FCC or Commission or Agency) proposes to add a new system of records, FCC/CGB–4, “Internet-based Telecommunications Relay Service-User Registration Database (ITRS–URD) Program.” The FCC's Consumer and Governmental Affairs Bureau (CGB) will use the information contained in the ITRS–URD Program's system of records to cover the personally identifiable information (PII) that is collected, used, stored, and maintained as part of the management, operations, and functions of the ITRS–URD's Program's database(s). The ITRS–URD Program, which is administered under contract with the FCC, is a database registration system that provides a necessary interface for multiple services, which include, but are not limited to Internet-based Telecommunications Relay Services (ITRS) such as VRS,
Submit written comments concerning this new system of records on or before March 11, 2015. The Administrator, Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), which has oversight responsibility under the Privacy Act to review the system of records, and Congress may submit comments on or before March 23, 2015. The proposed new system of records will become effective on March 23, 2015 unless the FCC receives comments that require a contrary determination. The Commission will publish a document in the
Address comments to Leslie F. Smith, Privacy Analyst, Information Technology (IT), Room 1–C216, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554, or via the Internet at
Leslie F. Smith, Information Technology (IT), Room 1–C216, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554, (202) 418–0217, or via the Internet at
As required by the
This notice meets the requirement documenting the proposed new system of records that is to be added to the systems of records that the FCC maintains, and provides the public, OMB, and Congress with an opportunity to comment.
Internet-based Telecommunications Relay Service-User Registration Database (ITRS–URD) Program.
The FCC's CIO team will provide a security classification to this system based on NIST FIPS–199 standards.
TRS Program Administrator; and TRS Fund Program Coordinator, Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
The categories of individuals for which the ITRS–URD Program's services are provided include individuals who are deaf, deaf-blind, hard of hearing, and/or have speech disabilities, and who are eligible under the ADA, to register to participate in/subscribe to one or more of the ITRS–URD Program's multiple services; are registered and currently receiving ITRS–URD Program's services; and/or are minors whose status makes them eligible for a parent or guardian to register them to participate in/subscribe to the ITRS–URD Program's services.
The categories of records in the ITRS–URD Program's services include, but are not limited to: the individual's full name (first, middle, and last names), parent or guardian's name of the registered subscriber who is a minor, full residential address, date of birth, last four digits of social security number (SSN) (or alternative proof of identification for those who do not have a social security number), ten digit telephone number(s) assigned in the TRS number directory and associated uniform resource identifier (URI) information, user's registered location information for emergency calling purposes, eligibility certification (digital copy) for ITRS–URD Program's service(s) and date obtained from provider, VRS provider and ITRS–URD Program's initiation date and
47 U.S.C. 141–154, 225, 255, 303(r), 616, and 620; 47 CFR parts 64, Subpart F,
The ITRS–URD Program, which is administered under contract with the FCC, is a database registration system that provides a necessary interface for multiple services, which include, but are not limited to VRS, IP Relay, and IPCTS, for individuals who are deaf, deaf-blind, hard of hearing, and/or have speech disabilities, and who are eligible under the ADA to register to participate in/subscribe to one or more of the ITRS–URD Program's multiple services; are registered and currently receiving ITRS–URD Program services; and/or are minors whose status makes them eligible for a parent or guardian to register them to participate in/subscribe to the ITRS–URD Program's services. The ITRS–URD Program system of records will cover the PII that is collected, used, stored, and maintained in this ITRS–URD Program's database(s), which is operated by the ITRS–URD Program's administrator on behalf of the FCC. This PII includes:
1. The information that is used to determine whether an individual who is applying for the ITRS–URD Program's services is eligible to register to participate in/subscribe to the ITRS–URD Program's services.
2. The information that the ITRS–URD Program's administrator uses to determine whether information with respect to its registered users already in the ITRS–URD Program's database(s) is correct and complete. These ITRS–URD Program's VRS providers must furnish the ITRS–URD Program's administrator with a subscriber list containing PII that includes the individual's full name (first, middle, and last names), parent or guardian's name of the registered subscriber who is a minor, full residential address, date of birth, last four digits of social security number (or alternative proof of identification for those who do not have a social security number), ten digit telephone number(s) assigned in the TRS number directory and associated URI information, user's registered location information for emergency calling purposes, eligibility certification (digital copy) for ITRS–URD Program's service(s) and date obtained from provider, VRS provider and ITRS–URD Program's initiation date and termination date, ITRS–URD Program support received per month, date of the provision of ITRS–URD Program support (if applicable), ITRS–URD Program user password, and date on which user last placed a point-to-point or relay call, call detail records registry for all forms of ITRS–URD Program's services, including CDRs supporting requests for reimbursement of VRS, IPCTS, and IP Relay service, monitoring and reporting information on data abnormalities, errors, and potential sources of fraud subscriber;
3. The information that the ITRS–URD Program's administrator will use to implement a system for automated validation of the registration information that has been submitted and ensure that the authorized VRS providers are unable to register individuals who do not pass the identification verification check conducted through the ITRS–URD Program. The ITRS–URD Program's Third Party contractor and subcontractors will establish the verification protocol to ensure that each individual has proven his/her eligibility to use the service with their desired default VRS provider;
4. The information VRS providers must request to validate each individual who seeks to register that he/she is an actual person living or visiting in the United States;
5. The information for a user signed up with multiple providers for different VRS services. Each company acting as the default provider will have access to their users' information as it pertains only to their service; and
6. The information that is contained in the records of the inquiries that the ITRS–URD Program's VRS providers will make available to the ITRS–URD Program's administrator's Third Party contractor and subcontractors who manages the database [verification/call/service center(s)] to verify that individuals who are deaf, deaf-blind, hard of hearing, and/or have speech disabilities and who are eligible under the ADA to participate in the ITRS–URD Program's services.
Records in the ITRS–URD Program's system of records are available for public inspection after redaction of information that could identify the individual ITRS–URD Program's participant/subscriber, such as the individual's name(s), date of birth, last four digits of social security number (including alternative proof of identification or other unique ID for those individuals who do not have a social security number), tribal ID number, telephone number(s), emergency location, and/or other PII that validates their participation in this program.
Information about individuals in this system of records may routinely be disclosed under the following conditions. The FCC will determine whether disclosure of the records is compatible with the purpose for which the records were collected in each of these cases.
1. FCC Program Management—A record from this system may be accessed and used by the FCC and the ITRS–URD Program Administrator and Program contractor's employees (including employees of subcontractors) to conduct official duties associated with the management and operation of the ITRS–URD Program, as directed by the Commission. The FCC may routinely have access to the information in the ITRS–URD Program's database(s), which includes, but is not limited to audits, oversight, and/or investigations of the ITRS–URD Program's database(s) for the purposes of managing and/or eliminating waste, fraud, and abuse in the ITRS services and ITRS–URD Program. The information may be shared with the FCC's Enforcement Bureau (EB), Consumer and Governmental Affairs Bureau (CGB), Office of Managing Director (OMD), Office of Inspector General (OIG), Telecommunications Relay Services (TRS) Fund Administrator and Program contractor(s) (and subcontractors), and the FCC TRS Fund Program Administrator, as necessary;
2. Third Party Contractors—A record from this system may be disclosed to an employee of a third-party contractor (and subcontractors, as required) to conduct the verification process that allows the ITRS–URD Program's administrator to determine the accuracy of the PII provided by the ITRS–URD Program's registrants to the system of records,
3. State Agencies and Authorized Entities— A record from this system may be disclosed to designated state agencies and other authorized entities, which include, but are not limited to state public utility commissions, and their agents, as is consistent with applicable Federal and State laws, to administer the ITRS–URD Program in that state and to perform other management and oversight duties and responsibilities. When necessary, this may include the transfer of data to and/or from the Third Party Contractor (and subcontractors) to determine or verify the accuracy of the PII provided by the ITRS–URD Program's registrants;
4. FCC Enforcement Actions—When a record in this system involves an informal complaint filed with the FCC alleging a violation of FCC Rules and Regulations by an ITRS–URD Program's applicant/subscriber/registrant, licensee, certified or regulated entity or an unlicensed person or entity, the complaint may be served to the alleged violator for a response through the FCC's normal course of complaint handling process. When an order or other Commission-issued document that includes consideration of an informal complaint or complaints is issued by the FCC for resolution or to enforce FCC Rules and Regulations, the complainant's name may be made public in that order or letter document. Where a complainant in filing his or her complaint explicitly requests that confidentiality of his or her name from public disclosure, the Commission will endeavor to protect such information from public disclosure. Complaints that contain requests for confidentiality may be dismissed if the Commission determines that the request impedes the Commission's ability to investigate and/or resolve the complaint;
5. Congressional Investigations and Inquiries—A record from this system may be disclosed to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, for the purposes of an official Congressional investigation, including but not limited to information concerning ITRS and the ITRS–URD Program's services, ITRS–URD Program's Administrator (and Third Party Contractors and subcontractors) and ITRS–URD Program participants/subscribers/registrants, and/or in response to an inquiry made by an individual to the Congressional office for the individual's own records;
6. Government-wide Program Management and Oversight—When requested by the National Archives and Records Administration (NARA), the Office of Personnel Management (OPM), the General Services Administration (GSA), and/or the Government Accountability Office (GAO) for the purpose of records management studies conducted under authority of 44 U.S.C. 2904 and 2906 (such disclosure(s) shall not be used to make a determination about individuals); when the U.S. Department of Justice (DOJ) is contacted in order to obtain that department's advice regarding disclosure obligations under the Freedom of Information Act; or when the Office of Management and Budget (OMB) is contacted in order to obtain that office's advice regarding obligations under the Privacy Act;
7. ADA Eligibility Verification Data—A record from this system may be disclosed to the appropriate Federal and/or State authorities (including transfers of PII data to/from the ITRS Program's Administrators, contractors, and subcontractors, as required) for the purposes of verifying whether individuals who are deaf, deaf-blind, hard of hearing and/or have speech disabilities are eligible under the ADA to register to participate in/subscribe to the ITRS–URD Program;
8. Law Enforcement and Investigation—Where there is an indication of a violation or potential violation of a statute, regulation, rule, or order, records from this system may be shared with appropriate federal, state, or local authorities either for purposes of obtaining additional information relevant to a FCC decision or for referring the record for investigation, enforcement, or prosecution by another (federal or state) agency to investigate program participation by VRS providers;
9. Adjudication and Litigation—Where by careful review, the Agency determines that the records are both relevant and necessary to litigation and the use of such records is deemed by the Agency to be for a purpose that is compatible with the purpose for which the Agency collected the records, these records may be used by a court or adjudicative body in a proceeding when: (a) The Agency or any component thereof; or (b) any employee of the Agency in his or her official capacity; or (c) any employee of the Agency in his or her individual capacity where the Agency has agreed to represent the employee; or (d) the United States Government is a party to litigation or has an interest in such litigation;
10. Department of Justice—A record from this system of records may be disclosed to the Department of Justice (DOJ) or in a proceeding before a court or adjudicative body when:
(a) The United States, the Commission, a component of the Commission, or, when represented by the government, an employee of the Commission is a party to litigation or anticipated litigation or has an interest in such litigation, and
(b) The Commission determines that the disclosure is relevant or necessary to the litigation; and
11. Breach of Federal Data—A record from this system may be disclosed to appropriate agencies, entities (including the ITRS–URD Program's administrator and its employees), and persons when: (1) The Commission suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Commission has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Commission or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
None.
The information pertaining to the ITRS–URD Program includes electronic records, files, and data and paper documents, records, and files. The ITRS–URD Program administrator will host the electronic data, which will reside in the administrator's ITRS–URD Program's database(s) and in the Third Party Contractor and subcontractors who conduct the subscribers/participants' verification processes. No data will be transmitted, downloaded, or allowed to reside outside of the database(s), except as required by:
1. ITRS providers to populate and update subscriber information and to query to verify the subscriber's status;
2. The FCC to perform oversight, performance, investigations, and/or audit functions, and
3. The ITRS–URD Program administrator or the TRS Fund Administrator to retrieve records and to obtain/transfer data from the Third
Any paper documents will be stored in filing cabinets in the secured areas in the ITRS–URD Program's administrator's office and at the FCC for oversight, performance, investigations, and/or audit purposes.
Information in the ITRS–URD Program may be retrieved by various identifiers, including, but not limited to the individual's name, last four digits of the social security number (SSN), date of birth, phone number, and residential address and other identifiers listed in the
1. Access to the electronic files is restricted to:
a. Authorized and credentialed the ITRS–URD Program's administrator's employees;
b. TRS Fund Administrator (and the TRS Third Party Contractor(s) and subcontractor(s)); and
c. Authorized FCC employees and contractors including, but not limited to the FCC TRS Fund Program Administrator, Enforcement Bureau (EB), Office of Inspector General (OIG), Consumer and Governmental Affairs Bureau (CGB), and Office of Managing Director (OMD), Information Technology (IT), and other bureaus and offices (B/Os), as required, to perform oversight, performance, auditing, and related management functions, duties, and responsibilities.
The FCC requires that parties with authorized access to the ITRS–URD Program's databases, including but not limited to the ITRS Administrator, employees, Third Party contractors and subcontractors, must maintain compliance with the FCC's computer and information security requirements, including those in the Federal Information Security Management Act (FISMA). In addition, an Independent Verification and Validation (IV&V) shall be performed to certify that functional and security requirements were met. IV&V will be conducted by a third-party vendor to ensure reliability, accessibility, validity, compatibility, traceability, security, and ease of use of the application within the environment.
2. The paper documents are maintained in file cabinets that are located in the ITRS–URD Program's administrator's office suites (and the Third Party contractor and subcontractor, as required), and at the FCC for oversight, performance, investigations, and/or audit purposes. The file cabinets are locked when not in use and at the end of the business day.
Access to these files is restricted to:
a. Authorized ITRS–URD Program's administrator's employees (and contractors and subcontractors); and
b. The TRS Fund Administrator and authorized FCC employees and contractors including, but not limited to the FCC TRS Fund Program Administrator, Enforcement Bureau (EB), Office of Inspector General (OIG), Consumer and Governmental Affairs Bureau (CGB), and Office of Managing Director (OMD), Information Technology Center (ITC), and other bureaus and offices (B/Os), as required, to perform oversight, performance, auditing, and related management functions, duties, and responsibilities.
The National Archives and Records Administration (NARA) has not established a records schedule for the information in the ITRS–URD Program. Consequently, until NARA has approved a records schedule, the ITRS–URD Program's administrator will maintain the information in the ITRS–URD Program's databases in accordance with the requirements of the ITRS
1. The data in the ITRS–URD Program's database(s) (including the information maintained by the Third Party Contractor and subcontractors who perform the verification processes) are the property of the Federal Government, but will be treated as propriety information of the contractor as the default provider; and
2. A log of all actions (queries and modifications) shall be maintained for a period of no less than five years (or for such other period as directed by the Commission.
Disposal of obsolete or out-of-date paper documents and files is by shredding. Electronic data, files, and records are destroyed by electronic erasure.
TRS Fund Administrator;
TRS Fund Program Coordinator, Office of Managing Director, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554; and
Consumer and Governmental Affairs Bureau (CGB), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
TRS Fund Administrator;
TRS Fund Program Coordinator, Office of Managing Director, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554;
Consumer and Governmental Affairs Bureau (CGB), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554; or
Privacy Analyst, Information Technology (IT), Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
TRS Fund Administrator;
TRS Fund Program Coordinator, Office of Managing Director, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554;
Consumer and Governmental Affairs Bureau (CGB), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554; or
Privacy Analyst, Information Technology (IT), Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
TRS Fund Administrator;
TRS Fund Program Coordinator, Office of Managing Director, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554;
Consumer and Governmental Affairs Bureau (CGB), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554; or
Privacy Analyst, Information Technology (IT), Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.
The sources for the information in the ITRS–URD Program's database(s) include, but are not limited to:
1. The information that the ITRS Program providers must furnish prior to registering ITRS subscribers/participants, and/or to re-certifying ITRS subscribers for participation in the ITRS Program; and
2. The information that individuals who are deaf, deaf-blind, hard of hearing and have speech disabilities and who are eligible under the ADA must provide to determine their eligibility for participation in the ITRS–URD Program.
None.
Federal Trade Commission (FTC or Commission).
Notice and request for comment.
In compliance with the Paperwork Reduction Act (PRA) of 1995, the FTC is seeking public comments on its request to OMB for a three-year extension of the current PRA clearance for information collection requirements pertaining to the Commission's administrative activities. That clearance expires on February 28, 2015.
Comments must be filed by March 11, 2015.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Nicholas Mastrocinque (Nick M) and Ami Dziekan (Ami D), Bureau of Consumer Protection, Federal Trade Commission, Mail Code CC–9232, 600 Pennsylvania Avenue NW., Washington, DC 20580, Nick M: (202) 326–3188 and Ami D: (202) 326–2648.
On November 14, 2014, the Commission sought comment on the information collection requirements pertaining to the Commission's administrative activities. 79 FR 68245. No comments were received. As required by OMB regulations, 5 CFR part 1320, the FTC is providing this second opportunity for public comment.
(a) Applications to the Commission, including applications and notices supported pursuant to the Commission's Rules of Practice: 150 hours.
Most applications to the Commission generally fall within the “law enforcement” exception to the PRA and are mostly found in Part III (Rules of Practice for Adjudicative Proceedings) of the Commission's Rules of Practice.
Using the burden hours estimated above, staff estimates that the total annual labor cost, based on an estimated average of $115/hour for executives' and attorneys' wages, would be approximately $17,250 (150 hours × $115).
(b) Complaint Systems: 222,622 annual hours.
Consumers can submit complaints about fraud and other practices to the FTC's Consumer Response Center by telephone or through an online complaint form at the FTC's Web site. Telephone complaints and inquiries to the FTC are answered both by FTC staff and contractors. These telephone counselors ask for the same information that consumers would enter on the applicable forms available on the FTC's Web site. The FTC also hosts a second online complaint form called econsumer.gov. This form accepts cross-border complaints from consumers through the econsumer.gov Web site and transmits them into the Consumer Sentinel Network. For telephone inquiries and complaints, the FTC staff estimates that it takes 5.9 minutes per call to gather information, and an estimated 5.3 minutes for consumers to enter a complaint online. The burden estimate conservatively assumes that the entire phone call is devoted to collecting information from consumers, although frequently telephone counselors devote a portion of the call to providing requested information to consumers.
As of 2014, the FTC now supports web chat for its online complaint process. Web chat allows consumers to communicate in real time using an easily accessible web interface to obtain technical support for the online complaint process. This feature will
To receive complaints from consumers of possible violations of the rules governing the National Do Not Call Registry, 16 CFR 310.4(b), the FTC maintains both an online form and a toll free hotline with automated voice response system. Consumer complainants must provide the phone number that was called, whether the call was prerecorded, and the date and time of the call. They may also provide either the name or telephone number of the company about which they are complaining, their name and address so they can be contacted for additional information, as well as for a brief comment regarding their complaint. In addition, complainants have the option of answering three yes-or-no questions to help law enforcement investigating complaints. The FTC staff estimates that the time required of consumer complainants to the National Do Not Call Registry is 3 minutes for phone complaints and 2 minutes for online complaints.
To handle complaints about identity theft, the FTC must obtain more detailed information than is required of other complainants. Identity theft complaints generally require more information (such as a description of actions complainants have taken with credit bureaus, companies, and law enforcement, and the identification of multiple suspects) than general consumer complaints and fraud complaints. FTC staff estimates that the online identity theft complaint form takes consumers up to 8.5 minutes to complete.
For consumers who call the CRC with an identity theft complaint, staff estimates that it will take 6.4 minutes per call to obtain complaint information. A substantial portion of identity theft-related calls typically consists of counseling consumers on other steps they should consider taking to obtain relief. The time needed for counseling is excluded from the estimate.
Consumer customer satisfaction surveys give the agency information about the overall effectiveness and timeliness of the FTC call center and online complaint process. An entity called Customer Feedback Insights contacts subsets of consumers throughout the year with several preapproved questions to elicit information from consumers about the overall effectiveness of the phone complaint process. Current estimates are that each respondent will require 4.4 minutes to answer the questions during the phone survey and about 2.7 minutes for the online survey (approximately 20–30 seconds per question).
In addition, the FTC currently uses ForeSee, Inc. for online customer satisfaction surveys on
The FTC also plans to send an electronic survey to all United States-located Consumer Sentinel Network users to identify areas where the system is satisfactory and where it can improve. Staff estimates the survey to not take more than 5 minutes to complete.
What follows are staff's estimates of burden for these various collections of information, including the surveys. The figures for the online forms and consumer hotlines are an average of annualized volume for the respective programs including both current and projected volumes over the three-year clearance period sought and the number of respondents for each activity has been rounded to the nearest thousand.
The cost per respondent should be negligible. Participation is voluntary and will not require any labor expenditures by respondents. There are no capital, start-up, operation, maintenance, or other similar costs to the respondents.
(c) Program Evaluations: 79 hours.
The Commission issues, on average, approximately 10–15 orders in merger cases per year that require divestitures. As a result of a 1999 study authorized by the Office of Management and Budget (OMB) and conducted by the staffs of the Bureau of Competition (BC) and the Bureau of Economics, as well as more recent experience, BC monitors these required divestitures by interviewing representatives of the Commission-approved buyers of the divested assets within the first year after the divestiture is completed.
BC staff interviews representatives of the buyers to ask whether all assets required to be divested were, in fact, divested; whether the buyer has used the divested assets to enter the market of concern to the Commission and, if so, the extent to which the buyer is participating in the market; whether the
Participation by the buyers is voluntary. Each responding company designates the company representative most likely to have the necessary information; typically, a company executive and an attorney represent the company. Each interview takes less than one hour to complete. BC staff further estimates that it takes each participant no more than one hour to prepare for the interview. Staff conservatively estimates that, for each interview of the responding company, two individuals (a company executive and an attorney) will devote two hours (one hour preparing and one hour participating) each to responding to questions for a total of four hours. Interviews of monitor trustees typically involve only the monitor trustee and take approximately one hour to complete with no more than one hour to prepare for the interview. Assuming that staff evaluates approximately 15 divestitures per year during the three-year clearance period, the total hours burden for the responding companies will be approximately 60 hours per year (15 divestiture reviews × 4 hours for preparing and participating). Staff may include approximately 2 monitor trustee interviews a year, which would add at most 4 hours (2 interviews × 2 hours for preparing and participating.).
Using the burden hours estimated above, staff estimates that the total annual labor cost, based on a conservative estimated average of $135/hour for executives' and attorneys' wages, would be approximately $8,640 (64 hours × $135).
The FTC's advocacy program draws on the Commission's expertise in competition and consumer protection matters to encourage state and federal legislators, agencies and regulatory officials, courts and private entities to consider the effects of their decisions on competition and consumer welfare. The Commission and staff send approximately 20 letters to such decision makers annually regarding the likely effects of various bills, regulations, and other policies.
In the past, the Office of Policy Planning (“OPP”) has evaluated the effectiveness of these advocacy comments by surveying comment recipients and other relevant decision makers. OPP intends to continue this evaluation by sending an electronic, or where necessary, a paper questionnaire to relevant parties within a year after sending an advocacy.
Most survey questions ask the respondent to agree or disagree with a statement concerning the advocacy comment that they received. Specifically, these questions ask about the consideration, content, influence, and public effect of our comments. The questionnaire also provides respondents with an opportunity to provide additional remarks regarding the comments they received, advocacy comments in general, and the outcome of the matter. These survey results are also included in the FTC's internal performance management indicators, and are used to guide the FTC's selection and prioritization of future advocacy opportunities.
OPP staff estimates that, on average, respondents will take 30 minutes or less to complete the questionnaire. OPP staff estimates that 15 minutes of administrative time will be necessary to prepare a survey for return via mail or email. Accordingly, staff estimates that each respondent will incur 45 minutes of burden, resulting in a cumulative total of 15 burden hours per year (45 minutes of burden per respondent × 20 respondents per year). OPP staff does not intend to conduct any follow-up activities that would involve the respondents' participation.
OPP staff estimates a conservative hourly labor cost of $100 for the time of the survey participants (primarily state representatives and senators) and an hourly labor cost of $20 for administrative support time. Thus, staff estimates a total labor cost of $55 for each response (30 minutes of burden at $100 per hour plus 15 minutes of burden at $20 per hour). Assuming 20 respondents will complete the questionnaire on an annual basis, staff estimates the total annual labor costs will be approximately $1,100 ($55 per response × 20 respondents). There are no capital, start-up, operation, maintenance, or other similar costs to respondents.
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before March 11, 2015. Write “Administrative Activities: FTC File No. P911409” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you are required to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comment online, or to send it to the Commission by courier or overnight service. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Administrative Activities: FTC File No. P911409” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before March 11, 2015. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at
Comments on the information collection requirements subject to review under the PRA should also be submitted to OMB. If sent by U.S. mail, address comments to: Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395–5167.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995, the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously information collection requirement concerning progress payments.
Submit comments on or before April 10, 2015.
Submit comments identified by Information Collection 9000–0010, Progress Payments, by any of the following methods:
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•
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Kathy Hopkins, Procurement Analyst, Federal Acquisition Policy Division, at (202) 969–7226 or
Certain Federal contracts provide for progress payments to be made to the contractor during performance of the contract. Pursuant to FAR clause 52.232–16 “Progress Payments,” contractors are required to request progress payments on Standard Form 1443, “Contractor's Request for Progress Payment,” or an agency approved electronic equivalent. Additionally, contractors may be required to submit reports, certificates, financial statements, and other pertinent information, reasonably requested by the Contracting Officer. The contractual requirement for submission of reports, certificates, financial statements and other pertinent information is necessary for protection of the Government against financial loss through the making of progress payments.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street NE., Washington, DC 20417, telephone (202) 501–4755. Please cite OMB Control No. 9000–0010, Progress Payments, in all correspondence.
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice of availability.
This notice announces the availability of the final Toxicological Profiles Toxaphene and Trichlorobenzenes prepared by ATSDR.
Ms. Delores Grant, Division of Toxicology and Human Health Sciences, Agency for Toxic Substances and Disease Registry, Mailstop F–57, 1600 Clifton Road, NE., Atlanta, Georgia 30333; telephone number (800) 232–4636 or (770)488–3351. Electronic access to these documents is available at the ATSDR Web site:
The Superfund Amendments and Reauthorization Act of 1986 (SARA) (42 U.S.C. 9601
Notice of the availability of these toxicological profiles in draft form for public review and comment was published in the
This notice announces the availability of the Toxicological Profiles for Toxaphene and Trichlorobenzenes prepared by ATSDR. The Toxicological Profiles for these substances will be made available to the public on or about October 17, 2015 at the ATSDR Web site:
These final profiles are also available through the U.S. Department of Commerce, National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, Virginia 22161, telephone 1–800–553–6847 for a fee as determined by NTIS.
This gives notice under the Federal Advisory Committee Act (Pub. L. 92–463) of October 6, 1972, that the Board of Scientific Counselors, National Center for Health Statistics, Department of Health and Human Services, has been renewed for a 2-year period through January 19, 2017.
For information, contact Virginia Cain, Ph.D., Designated Federal Officer, Board of Scientific Counselors, National Center for Health Statistics, Department of Health and Human Services, 3311 Toledo Road, Room 7204, Mailstop P08, Hyattsville, Maryland 20782, telephone 301/458–4395 or fax 301/458–4020.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns “Comprehensive High-Impact HIV Prevention Projects for Community-Based Organizations”, Funding Opportunity Announcement (FOA) PS15–1502, initial review.
In accordance with Section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In compliance with the requirements of Section 506(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: ACF 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 information to be collected; and (e) 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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of three Emergency Use Authorizations (EUAs) (the Authorizations), one of which was amended after initial issuance, for three in vitro diagnostic devices for detection of the Ebola virus in response to the 2014 Ebola virus outbreak in West Africa. FDA is issuing these Authorizations under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as requested by BioFire Defense, LLC (BioFire Defense) and altona Diagnostics GmbH (altona). The Authorizations contain, among other things, conditions on the emergency use of the authorized in vitro diagnostic devices. The Authorizations follow the September 22, 2006, determination by then-Secretary of the Department of Homeland Security (DHS), Michael Chertoff, that the Ebola virus presents a material threat against the U.S. population sufficient to affect national security. On the basis of such determination, the Secretary of Health and Human Services (HHS) declared on August 5, 2014, that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection of Ebola virus subject to the terms of any authorization issued under the FD&C Act. The Authorizations, which include an explanation of the reasons for issuance, are reprinted in this document.
The Authorizations for the BioFire FilmArray NGDS BT–E Assay and BioFire FilmArray Biothreat-E test are effective as of October 25, 2014. The Authorization for the altona RealStar® Ebolavirus RT–PCR Kit 1.0, which was amended and reissued on November 26, 2014, is effective as of November 10, 2014.
Submit written requests for single copies of the EUAs 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 Authorizations 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 DHS 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 the Department 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; or (4) the identification of a material threat by the Secretary of DHS under section 319F–2 of the Public Health Service (PHS) Act (42 U.S.C. 247d–6b) sufficient to affect national security or the health and security of U.S. citizens living abroad.
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 September 22, 2006, then-Secretary of DHS, Michael Chertoff, determined that the Ebola virus presents a material threat against the U.S. population sufficient to affect national security.
An electronic version of this document and the full text of the Authorizations are available on the Internet at
Having concluded that the criteria for issuance of the Authorizations under section 564(c) of the FD&C Act are met, FDA has authorized the emergency use of certain in vitro diagnostic devices. The Authorization for the BioFire FilmArray NGDS BT–E Assay issued on October 25, 2014, 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:
The Authorization for the BioFire FilmArray Biothreat-E test issued October 25, 2014, 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:
The Authorization for the RealStar® Ebolavirus RT–PCR Kit 1.0, originally issued on November 10, 2014, as amended and reissued in its entirety on November 26, 2014, (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, and its amendment:
Food and Drug Administration, HHS.
Notice; withdrawal.
The Food and Drug Administration (FDA or we) is announcing the withdrawal of a guidance entitled “Guidance for Industry: Questions and Answers Regarding the Effect of Section 4205 of the Patient Protection and Affordable Care Act of 2010 on State and Local Menu and Vending Machine Labeling Laws,” dated August 2010. We are taking this action because the policies stated in the guidance have been superseded by our issuance of final rules on menu and vending machine labeling.
February 9, 2015.
Felicia B. Billingslea, Center for Food Safety and Applied Nutrition (HFS–820), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240–402–2371.
In a notice published in the
We are withdrawing this guidance because we recently issued two final rules entitled “Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments” and “Food Labeling; Calorie Labeling of Articles of Food in Vending Machines” (see 79 FR 71156 (December 1, 2014) and 79 FR 71259 (December 1, 2014), respectively). The preambles for these final rules discuss issues relating to Federalism and to federal preemption of State and local laws and reflect our latest thinking on those issues. Consequently, the guidance no longer reflects our current thinking insofar as the law's effect on State and local menu and vending machine labeling laws is concerned.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of two guidance documents. FDA is issuing “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communication Devices” to inform manufacturers, distributors, and other entities that the Agency does not intend to enforce compliance with regulatory requirements for Medical Device Data Systems (MDDS) and two similar radiology device types due to the low risk they pose to patients and the importance they play in advancing digital health. FDA is also issuing an updated version of the guidance document “Mobile Medical Applications,” originally issued on September 25, 2013, that has been edited to be consistent with the MDDS guidance document.
Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.
An electronic copy of the guidance document is available for
Submit electronic comments on the guidances to
FDA recognizes that the progression to digital health offers potential for better, more efficient patient care and improved health outcomes. To achieve this goal requires that many medical devices be interoperable with various types of health information technology, including other types of medical devices. The foundation for such intercommunication is hardware and software that functions to transfer, store, convert formats, or display medical device data without modifying the data or controlling the functions or parameters of any connected medical device.
Since issuance of the February 2011 final rule, FDA has gained additional experience with these types of technologies and has determined that these devices pose a low risk to the public. Therefore, in the documents that are the subject of this notice, FDA provides guidance on the compliance policy for MDDS devices, medical image storage devices, and medical image communication devices and makes conforming changes to the guidance document “Mobile Medical Applications.” FDA issued a notice of availability of the draft guidances on June 25, 2014 (79 FR 36072).
The guidance document, “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communication Devices,” states that FDA does not intend to enforce compliance with the regulatory requirements that apply to MDDS devices, medical image storage devices, and medical image communications devices. Blood Establishment Computer Software (BECS) and accessories to BECS are not MDDS devices. Therefore, this guidance does not address the regulation of those devices, which FDA intends to address in another forum. If you have questions about BECS or BECS accessories, please contact the Office of Communication Outreach and Development, CBER at 800–835–4709, 240–402–7800, or email
The September 25, 2013, version of the guidance entitled “Mobile Medical Applications” has been updated to be consistent with the policy stated in the guidance document “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communication Devices.” The updated version of “Mobile Medical Applications” also incorporates additional examples from FDA's mobile medical applications' Web site (see
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on medical device data systems, medical image storage devices, and medical image communications devices as well as mobile medical applications. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the guidances may do so by downloading an electronic copy from the Internet. A search capability for all CDRH guidance documents is available at
The guidance documents “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communication Devices” and “Mobile Medical Applications” refer to previously approved information collections found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Review Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 801 and 809 are approved under OMB control
Interested persons may submit either electronic comments regarding this document to
Food and Drug Administration, HHS.
Notice of availability; withdrawal.
The Food and Drug Administration (FDA) is announcing the availability of a revised draft guidance for industry entitled “Brief Summary and Adequate Directions for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and Promotional Labeling for Human Prescription Drugs.” This revised draft guidance, when finalized, will assist manufacturers, packers, and distributors (firms) of human prescription drugs and biologics with meeting the brief summary requirement for prescription drug advertising and the requirement that adequate directions for use be included with promotional labeling for prescription drugs when print materials are directed toward consumers. FDA is also announcing the withdrawal of the draft guidance for industry entitled “Brief Summary: Disclosing Risk Information in Consumer-Directed Print Advertisements.”
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on this revised draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the revised draft guidance by May 11, 2015. Submit either electronic or written comments on the proposed collection of information by April 10, 2015.
Submit written requests for single copies of the revised draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2201, Silver Spring, MD 20993–0002; or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Submit electronic comments on the revised draft guidance to
FDA is announcing the availability of a revised draft guidance for industry entitled “Brief Summary and Adequate Directions for Use: Disclosing Risk Information in Consumer-Directed Print Advertisements and Promotional Labeling for Human Prescription Drugs.” This revised draft guidance updates prior FDA policy and describes the Agency's current thinking regarding the brief summary requirement for consumer-directed print prescription drug advertisements. Specifically, the revised draft guidance includes recommendations for developing a consumer brief summary and notes that, so long as firms include appropriate information in a print advertisement as outlined in the revised draft guidance, FDA does not intend to object for a failure to include certain other information.
Additionally, this revised draft guidance provides new recommendations regarding the adequate directions for use requirement for consumer-directed print promotional labeling for prescription drug products. Although the requirement in 21 CFR 201.100(d) for firms to provide adequate information for use is generally fulfilled by providing the full FDA-approved package insert (PI), this revised draft guidance provides that, in exercising its enforcement discretion, FDA does not intend to object for failure to include the full PI with consumer-directed print promotional labeling pieces if firms include the appropriate information as outlined in the revised draft guidance,
FDA issued a draft guidance in the
This revised draft guidance incorporates information from recent social science research, clarifies the risk information that should be included in the consumer brief summary, and recommends several formatting options for this information. The revised draft guidance also recommends the use of consumer-friendly language and visual techniques to improve accessibility for consumers. Additionally, this revised draft guidance recommends that firms not disseminate the full PI to fulfill the requirements in § 201.100(d) for consumer-directed print promotional labeling for prescription drugs. Rather, the revised draft guidance recommends that firms provide the same content and format created for the consumer brief summary. FDA is issuing this revised guidance as a draft to allow for public comment on the recommendations.
This revised draft guidance is being issued consistent with FDA's good guidance practices regulations (21 CFR 10.115). The revised draft guidance, when finalized, will represent FDA's current thinking on the brief summary and adequate directions for use requirements. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of information collected on the respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The revised draft guidance, in part, explains FDA's current policy position that FDA does not intend to object for failure to include the entire PI to fulfill the requirements of § 201.100(d) for promotional labeling pieces directed toward consumers, if firms instead provide information on the most serious and the most common risks associated with the product, while omitting less important information. Specifically, FDA recommends that any Boxed Warning, all Contraindications, certain information regarding Warnings and Precautions (
Furthermore, FDA recommends that information should include the indication for the use being promoted. Information regarding patient directives (such as “discuss with your health care provider any pre-existing conditions” or “tell your health care provider if you are taking any medications”) should also be included. Other types of information may be included if relevant to the drug or specific indication referred to in the promotional material(s). A statement should be included that more comprehensive information can be obtained from various sources, including the firm.
Thus, the revised draft guidance recommends that firms disclose certain information to others in place of the PI to fulfill the requirements in § 201.100(d). This “third-party disclosure” constitutes a “collection of information” under the PRA.
FDA estimates that approximately 400 firms disseminate 24,000 consumer-directed print promotional labeling pieces annually. FDA estimates that it will take firms approximately 10 hours to compile and draft the information needed to provide the information recommended in the revised draft guidance.
This revised draft guidance also refers to previously approved collections of information found in FDA regulations with respect to the brief summary requirement. These collections of information are subject to review by OMB under the PRA. The collection of information in 21 CFR 202.1 has been approved under OMB control number 0910–0686.
In addition to general comments, FDA specifically requests comments on the following issues:
• In the revised draft guidance, FDA provides recommendations regarding the content and format of the consumer brief summary. Is this the most useful information for consumers to use in determining whether to take a medication or seek more information about a product, and if not, what information would be more useful?
• FDA is also interested in relevant research that has been conducted or alternative formats that were developed after we received comments on the 2004 draft guidance.
• In the revised draft guidance, FDA suggests that the adequate directions for use requirement be fulfilled by providing the consumer brief summary rather than the full PI for the product. FDA seeks comments regarding this recommendation.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Cindy Hong at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of 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 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.,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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(a) 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 open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Notice of minimum random drug testing rate.
The Coast Guard has set the calendar year 2015 minimum random drug testing rate at 25 percent of covered crewmembers.
The minimum random drug testing rate is effective January 1, 2015 through December 31, 2015.
Marine employers must submit their 2014 Management Information System (MIS) reports no later than March 15, 2015.
Annual MIS reports may be submitted by electronic submission to the following Internet address:
For questions about this notice, please contact Mr. Patrick Mannion, Drug and Alcohol Program Manager, Office of Investigations and Casualty Analysis (CG–INV), U.S. Coast Guard Headquarters, telephone 202–372–1033. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366–9826.
The Coast Guard requires marine employers to establish random drug testing programs for covered crewmembers on inspected and uninspected vessels in accordance with 46 CFR 16.230. Every marine employer is required by 46 CFR 16.500 to collect and maintain a record of drug testing program data for each calendar year, and submit this data by 15 March of the following year to the Coast Guard in an annual MIS report.
Each year, the Coast Guard will publish a notice reporting the results of random drug testing for the previous calendar year's MIS data and the minimum annual percentage rate for random drug testing for the next calendar year. The purpose of setting a minimum random drug testing rate is to assist the Coast Guard in analyzing its current approach for deterring and detecting illegal drug abuse in the maritime industry.
The Coast Guard announces that the minimum random drug testing rate for calendar year 2015 is 25 percent. The Coast Guard may increase this rate if MIS data indicates a qualitative deficiency of reported data or the positive random testing rate is greater than 1.0 percent in accordance with 46 CFR part 16.230(f)(2). MIS data for 2014 indicates that the positive rate is less than one percent industry-wide (0.78 percent).
For 2015, the minimum random drug testing rate will continue at 25 percent of covered employees for the period of January 1, 2015 through December 31, 2015 in accordance with 46 CFR 16.230(e).
Federal Emergency Management Agency, DHS.
Notice; Correction; Extension of Comment Period.
On December 11, 2014, the Federal Emergency Management Agency (FEMA) published an agency information collection notice in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the collection of information related to FEMA's temporary housing assistance, which provides temporary housing to eligible survivors of federally declared disasters. This information is required to: (a) Determine whether the infrastructure of the site supports the installation of the temporary housing unit; (b) obtain permission to place the temporary housing unit on the property; and (c) allow ingress and egress to the property where the temporary housing unit is placed.
Comments must be submitted on or before April 10, 2015.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Elizabeth McDowell, Supervisory Program Specialist, FEMA, Recovery Directorate, at (540) 686–3630 for further information. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 212–4701 or email address:
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5174) authorizes the President to provide temporary housing units to include mobile homes and other readily fabricated dwellings to eligible applicants who require temporary housing as a result of a major disaster. Title 44 CFR 206.117 provides the requirements for disaster-related housing needs of individuals and households who are eligible for temporary housing assistance. The information collected provides the facts necessary to determine the feasibility of the proposed site for placement of temporary housing units and so that FEMA can have access to place the temporary housing unit as well as retrieve it at the end of the use.
Comments may be submitted as indicated in the ADDRESSES caption above. Comments are solicited to (a) evaluate whether the proposed data collection is necessary for the proper performance 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,
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a new information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the collection of information related to FEMA's temporary housing assistance, which provides temporary housing to eligible survivors of federally declared disasters.
Comments must be submitted on or before April 10, 2015.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Elizabeth McDowell, Supervisory Program Specialist, FEMA, Recovery Directorate, at (540) 686–3630 for further information. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 212–4701 or email address:
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C 5174, authorizes the President to provide temporary housing units to include manufactured homes and other readily fabricated dwellings to eligible applicants who require temporary housing as a result of a major disaster. Requirements for disaster-related housing needs of individuals and households who are eligible for temporary housing assistance may be found at Title 44 CFR 206.117. The information collected provides the information necessary to determine the feasibility of the site for placement of temporary housing units. The information will also provide FEMA with access to place the temporary housing unit as well as retrieve it at the end of the use.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before May 11, 2015.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1466, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new
Comments are to be submitted on or before May 11, 2015.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1462, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency; DHS.
Notice; correction.
On July 9, 2014, FEMA published in the
Comments are to be submitted on or before May 11, 2015.
The Preliminary Flood Insurance Rate Map (FIRM), and where applicable, the Flood Insurance Study (FIS) report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1415, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064 or (email)
FEMA proposes to make flood hazard determinations for each community listed in the table below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP may only be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The communities affected by the flood hazard determinations are provided in the table below. Any request for reconsideration of the revised flood hazard determinations shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations will also be considered before the FIRM and FIS report are made final.
In the proposed flood hazard determination notice published at 79 FR 38934 in the July 9, 2014, issue of the
In this document, FEMA is publishing a table containing the accurate information. The information provided below should be used in lieu of that previously published.
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before May 11, 2015.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1463, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Secretary, HUD.
Notice of Fiscal Year (FY) 2015 Annual Adjustment Factors (AAFs).
The United States Housing Act of 1937 requires that assistance contracts signed by owners participating in the Department's Section 8 housing assistance payment programs provide annual adjustments to monthly rentals for units covered by the contracts. This notice announces FY 2015 AAFs for adjustment of contract rents on assistance contract anniversaries. The factors are based on a formula using residential rent and utility cost changes from the most recent annual Bureau of Labor Statistics Consumer Price Index (CPI) survey. Beginning with the FY 2014 AAFs and continuing with these FY 2015 AAFs, the Puerto Rico CPI is used in place of the South Region CPI for all areas in Puerto Rico. These factors are applied at Housing Assistance Payment (HAP) contract anniversaries for those calendar months commencing after the effective date of this notice. A separate
Contact Becky Primeaux, Director, Management and Operations Division, Office of Housing Voucher Programs, Office of Public and Indian Housing, 202–708–1380, for questions relating to the Project-Based Certificate and Moderate Rehabilitation programs (non Single Room Occupancy); Ann Oliva, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, 202–708–4300, for questions regarding the Single Room Occupancy (SRO) Moderate Rehabilitation program; Catherine Brennan, Director, Office of Housing Assistance and Grant Administration, Office of Housing, 202–708–3000, for questions relating to all other Section 8 programs; and Marie Lihn, Economist, Economic and Market Analysis Division, Office of Policy Development and Research, 202–402–5866, for technical information regarding the development of the schedules for specific areas or the methods used for calculating the AAFs. The mailing address for these individuals is: Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410. Hearing- or speech-impaired persons may contact the Federal Information Relay Service at 800–877–8339 (TTY). (Other than the “800” TTY number, the above-listed telephone numbers are not toll free.)
Tables showing AAFs will be available electronically from the HUD data information page at
AAFs established by this Notice are used to adjust contract rents for units assisted in certain Section 8 housing assistance payment programs during the initial (
Each Section 8 program category uses the AAFs differently. The specific application of the AAFs is determined by the law, the HAP contract, and appropriate program regulations or requirements.
AAFs are not used in the following cases:
This section of the notice provides a broad description of procedures for adjusting the contract rent. Technical details and requirements are described in HUD notices H 2002–10 (Section 8 New Construction and Substantial Rehabilitation, Loan Management, and Property Disposition) and PIH 97–57 (Moderate Rehabilitation and Project-Based Certificates).
Because of statutory and structural distinctions among the various Section 8 programs, there are separate rent adjustment procedures for the three program categories:
In the Section 8 New Construction and Substantial Rehabilitation programs, the published AAF factor is applied to the pre-adjustment contract rent. In the Section 8 Moderate Rehabilitation program (both the regular program and the single room occupancy program) the published AAF is applied to the pre-adjustment base rent.
For Category 1 programs, the Table 1 AAF factor is applied before determining comparability (rent reasonableness). Comparability applies if the pre-adjustment gross rent (pre-adjustment contract rent plus any allowance for tenant-paid utilities) is above the published Fair Market Rent (FMR).
If the comparable rent level (plus any initial difference) is lower than the contract rent as adjusted by application of the Table 1 AAF, the comparable rent level (plus any initial difference) will be the new contract rent. However, the pre-adjustment contract rent will not be decreased by application of comparability.
In all other cases (
• The Table 1 AAF is used for a unit occupied by a new family since the last annual contract anniversary.
• The Table 2 AAF is used for a unit occupied by the same family as at the time of the last annual contract anniversary.
At this time Category 2 programs are not subject to comparability. (Comparability will again apply if HUD establishes regulations for conducting comparability studies under 42 U.S.C. 1437f(c)(2)(C).)
The applicable AAF is determined as follows:
• The Table 1 AAF is used for a unit occupied by a new family since the last annual contract anniversary.
• The Table 2 AAF is used for a unit occupied by the same family as at the time of the last annual contract anniversary.
The following procedures are used to adjust contract rent for outstanding HAP contracts in the Section 8 PBC program:
• The Table 2 AAF is always used. The Table 1 AAF is not used.
• The Table 2 AAF is always applied before determining comparability (rent reasonableness).
• Comparability always applies. If the comparable rent level is lower than the rent to owner (contract rent) as adjusted by application of the Table 2 AAF, the comparable rent level will be the new rent to owner.
• The new rent to owner will not be reduced below the contract rent on the effective date of the HAP contract.
In accordance with Section 8(c)(2)(A) of the United States Housing Act of 1937 (42 U.S.C. 1437f(c)(2)(A)), the AAF is reduced by 0.01:
• For all tenancies assisted in the Section 8 Project-Based Certificate program.
• In other Section 8 programs, for a unit occupied by the same family at the time of the last annual rent adjustment (and where the rent is not reduced by application of comparability (rent reasonableness)).
The law provides that:
Except for assistance under the certificate program, for any unit occupied by the same family at the time of the last annual rental adjustment, where the assistance contract provides for the adjustment of the maximum monthly rent by applying an annual adjustment factor and where the rent for a unit is otherwise eligible for an adjustment based on the full amount of the factor, 0.01 shall be subtracted from the amount of the factor, except that the factor shall not be reduced to less than 1.0. In the case of assistance under the certificate program, 0.01 shall be subtracted from the amount of the annual adjustment factor (except that the factor shall not be reduced to less than 1.0), and the adjusted rent shall not exceed the rent for a comparable unassisted unit of similar quality, type and age in the market area. 42 U.S.C. 1437f(c)(2)(A).
Because the cost to owners of turnover-related vacancies, maintenance, and marketing are lower for long-term stable tenants, these tenants are typically charged less than recent movers in the unassisted market. Since HUD pays the full amount of any rent increases for assisted tenants in section 8 projects and under the Certificate program, HUD should expect to benefit from this `tenure discount.' Turnover is lower in assisted properties than in the unassisted market, so the effect of the current inconsistency with market-based rent increases is exacerbated. (140 Cong. Rec. 8659, 8693 (1994)).
To implement the law, HUD publishes two separate AAF Tables, Tables 1 and 2. The difference between Table 1 and Table 2 is that each AAF in Table 2 is 0.01 less than the corresponding AAF in Table 1. Where an AAF in Table 1 would otherwise be less than 1.0, it is set at 1.0, as required by statute; the corresponding AAF in Table 2 will also be set at 1.0, as required by statute.
AAF Tables 1 and 2 are posted on the HUD User Web site at
The applicable AAF is selected as follows:
• Determine whether Table 1 or Table 2 is applicable. In Table 1 or Table 2, locate the AAF for the geographic area where the contract unit is located.
• Determine whether the highest cost utility is or is not included in contract rent for the contract unit.
• If highest cost utility is included, select the AAF from the column for “Highest Cost Utility Included.” If highest cost utility is not included, select the AAF from the column for “Highest Cost Utility Excluded.”
AAFs are rent inflation factors. Two types of rent inflation factors are calculated for AAFs: Gross rent factors and shelter rent factors. The gross rent factor accounts for inflation in the cost of both the rent of the residence and the utilities used by the unit; the shelter rent factor accounts for the inflation in the rent of the residence, but does not reflect any change in the cost of utilities. The gross rent inflation factor is designated as “Highest Cost Utility Included” and the shelter rent inflation factor is designated as “Highest Cost Utility Excluded.”
AAFs are calculated using CPI data on “rent of primary residence” and “fuels and utilities.”
The rent and fuel and utilities inflation factors for large metropolitan areas and Census regions are based on changes in the rent of primary residence and fuels and utilities CPI indices from 2012 to 2013. The CEX data used to decompose the contract rent inflation factor into gross rent and shelter rent inflation factors come from a special tabulation of 2012 CEX survey data produced for HUD for the purpose of computing AAFs. The utility-to-rent ratio used to produce AAFs comes from 2012 ACS median rent and utility costs.
AAFs are produced for all Class A CPI cities (CPI cities with a population of 1.5 million or more) and for the four Census Regions. They are applied to core-based statistical areas (CBSAs), as defined by the Office of Management and Budget (OMB), according to how much of the CBSA is covered by the CPI city-survey. If more than 75 percent of the CBSA is covered by the CPI city-survey, the AAF that is based on that CPI survey is applied to the whole CBSA and to any HUD-defined metropolitan area, called the “HUD Metro FMR Area” (HMFA), within that CBSA. If the CBSA is not covered by a CPI city-survey, the CBSA uses the relevant regional CPI factor. Almost all non-metropolitan counties use regional CPI factors.
Each metropolitan area that uses a local CPI update factor is listed alphabetically in the tables and each HMFA is listed alphabetically within its respective CBSA. Each AAF applies to a specific geographic area and to units of all bedroom sizes. AAFs are provided:
• For separate metropolitan areas, including HMFAs and counties that are currently designated as non-metropolitan, but are part of the metropolitan area defined in the local CPI survey.
• For the four Census Regions (to be used for those metropolitan and non-metropolitan areas that are not covered by a CPI city-survey).
AAFs use the same OMB metropolitan area definitions, as revised by HUD, that are used for the FY 2015 FMRs.
To make certain that they are using the correct AAFs, users should refer to the Area Definitions Table section at
Puerto Rico uses its own AAFs calculated from the Puerto Rico CPI as adjusted by the PRCS, the Virgin Islands uses the South Region AAFs and the Pacific Islands uses the West Region AAFs. All areas in Hawaii use the AAFs listed next to “Hawaii” in the Tables which are based on the CPI survey for the Honolulu metropolitan area. The Pacific Islands use the West Region AAFs.
Office of Community Planning and Development, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Departmental Paperwork Reduction Act Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4160, Washington, DC 20410; telephone: 202–708–3400 (this is not a toll-free number) or email Ms. Pollard for a copy of the proposed form and other available information.
Gloria Coates, Community Planning and Development Specialist, Entitlement Communities Division, Office of Block Grant Assistance, 451 7th Street SW., Room 7282, Washington, DC 20410; telephone (202) 708–1577 (this is not a toll-free number).
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
The Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of Community Planning and Development, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Departmental Paperwork Reduction Act Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4160, Washington, DC 20410; telephone: 202–708–3400 (this is not a toll-free number) or email Ms. Pollard for a copy of the proposed form and other available information.
Gloria Coates, Community Planning and Development Specialist, Entitlement Communities Division, Office of Block Grant Assistance, 451 7th Street SW., Room 7282, Washington, DC 20410; telephone (202) 708–1577 (this is not a toll-free number).
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
New York towns undertook a similar process every three years. However, after consultation with program counsel, it was determined that a requalification process for New York towns is unnecessary because the units of general local government in New York towns do not have the same statutory notice rights (under section 102(e) of the Housing and Community Development Act of 1974) as units of general local government participating in an urban county. In addition, each New York town has automatic renewing agreements with the incorporated units of general local governments contained within their boundaries. Therefore, it is presumed that all incorporated units of general local government will continue to participate in the New York towns in which they are located unless Headquarters is notified to the contrary.
This total number of combined burden hours can be expected to increase annually by 200 hours, given the average of two new urban counties becoming eligible entitlement grantees each year.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35.
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs (BIA) is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for the Law and Order on Indian Reservations—Marriage & Dissolution Applications, which concerns marriage and dissolution of a marriage in a Court of Indian Offenses. The information collection is currently authorized by OMB Control Number 1076–0094. This information collection expires April 30, 2015.
Submit comments on or before April 10, 2015.
You may submit comments on the information collection to Katherine Scotta, Office of Justice Services, Bureau of Indian Affairs, 1849 C Street NW., MS–2603–MIB, Washington, DC 20240; email:
Katherine Scotta, (202) 208–6711.
The Bureau of Indian Affairs is seeking renewal of the approval for the information collection conducted under 25 CFR 11.600(c) and 11.606(c). This information collection allows the Clerk of the Court of Indian Offenses to collect personal information necessary for a Court of Indian Offenses to issue a marriage license or dissolve a marriage. Courts of Indian Offenses have been established on certain Indian reservations under the authority vested in the Secretary of the Interior by 5 U.S.C. 301 and 25 U.S.C. 2, 9, and 13, which authorize appropriations for “Indian judges.” The courts provide for the administration of justice for Indian tribes in those areas where the tribes retain jurisdiction over Indians, exclusive of State jurisdiction, but where tribal courts have not been established to exercise that jurisdiction and the tribes has, by resolution or constitutional amendment, chosen to use the Court of Indian Offenses. Accordingly, Courts of Indian Offenses exercise jurisdiction under 25 CFR 11. Domestic relations are governed by 25 CFR 11.600, which authorizes the Court of Indian Offenses to conduct and dissolve marriages. In order to obtain a marriage licenses in a Court of Indian Offenses, applicants must provide the six items of information listed in 25 CFR 11.600(c), including identifying information, such a Social Security number, information on previous marriage, relationship to the other applicant, and a certificate of the results of any medical examination required by applicable tribal ordinances or the laws of the State in which the Indian country under the jurisdiction of the Court of Indian Offenses is located. To dissolve a marriage, applicants must provide the six items of information listed in 25 CFR 11.606(c), including information on occupation and residency (to establish jurisdiction), information on whether the parties have lives apart for at least 180 days or if there is serious marital discord warranting dissolution, and information on the children of the marriage and whether the wife is pregnant (for the court to determine the appropriate level of support that may be required from the non-custodial parent). (25 CFR 11.601) Two forms are used as part of this information collection, the Marriage License Application and the Dissolution of Marriage Application.
The BIA requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) El Centro Field Office, California, and California Department of Parks and Recreation Off-Highway Motor Vehicle Recreation Division (OHMVR) intend to prepare a California Desert Conservation Area (CDCA) Plan Amendment with an associated joint Environmental Impact Statement (EIS)/Environmental Impact Report (EIR) for the Ocotillo Wells State Vehicular Recreation Area (SVRA) for the proposed Recreation Area Management Plan (RAMP) and General Plan update. By this notice, the BLM and OHMVR are announcing the beginning of the scoping process to solicit public comments and identify issues.
This notice initiates the public scoping process for the CDCA Plan Amendment with associated joint EIS/EIR. Comments on issues may be submitted in writing until March 11, 2015.
The BLM has scheduled two public scoping meetings:
3:30 p.m.–8:30 p.m., Temecula Conference Center, 41000 Main Street, Temecula, CA 92590.
12:00 p.m.–4:00 p.m., Ocotillo Wells SVRA Visitor Center, Discovery Center Building, 5172 Highway 78, Borrego Springs, CA 92004.
The date(s) and location(s) of any additional scoping meetings will be announced at least 15 days in advance through local media, newspapers and the BLM Web site at:
You may submit comments on issues and planning criteria related to the Ocotillo Wells SVRA RAMP and General Plan Update by any of the following methods:
• Web site:
• Email:
• Fax: 760–337–4490
• Mail: Attn: Carrie Simmons, BLM El Centro Field Office, 1661 S. 4th Street, El Centro, CA 92243.
Carrie Simmons; telephone 760–337–4437; address 1661 S. 4th Street, El Centro, CA 92243; or email
This document provides notice that the BLM intends to prepare a CDCA Plan Amendment with an associated EIS, announces the beginning of the scoping process, and seeks public input on issues and planning criteria. The Ocotillo Wells SVRA is located in San Diego and Imperial counties, generally north of State Route 78, west of State Route 86, and bounded by Anza-Borrego Desert State Park on the north and west. The BLM portion of this project occurs solely within Imperial County and constitutes approximately 21,600 acres within the 85,000 acre Ocotillo Wells SVRA.
The BLM lands within the Ocotillo Wells SVRA are managed by California State Parks OHMVR Division through a Memorandum of Understanding (MOU). A joint RAMP/General Plan would improve the efficiency and effectiveness of resource and recreation management at Ocotillo Wells SVRA. Primary recreation activities at Ocotillo Wells SVRA include off-highway vehicle (OHV) use, camping, education and interpretation, and special events. The California State Parks General Plan revision is needed to provide updated planning and management policies, goals, and guidelines for the entire SVRA including SVRA expansions since the 1982 General Plan was adopted. The BLM decisions include whether or not to amend the CDCA plan to change the land use designation of some BLM parcels in the SVRA. This may include making changes in OHV area designations in accordance with 43 CFR 8342. The CDCA Plan Amendment/EIS will consider a proposal to designate the Ocotillo Wells SVRA as a Special Recreation Management Area (SRMA). SRMA designations recognize public lands where recreation is the predominant land use. In response to a California State Parks Recreation and Public Purposes Act (R&PP Act) application, the BLM will also identify lands within the planning area that would be available for leasing or patent to the State of California through the R&PP Act or other land transfer or disposal processes. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process. Preliminary issues for the CDCA Plan Amendment area have been identified by BLM and OHMVR as well as other Federal, State, and local agencies and stakeholders. Issues include wildlife and botany; cultural resources and paleontology; water resources; noise; land use; geology and soils; mineral resources including geothermal; socioeconomics; hazardous materials and solid waste; public health; visual resources; air quality; recreation; and traffic and transportation.
In addition, the BLM anticipates the following planning issues: (1) How best to address conflicts between recreational users, and (2) how to balance opportunities for the different kinds of recreation uses.
A preliminary list of the potential planning criteria that will be used to help guide and define the scope of the Plan Amendment includes:
1. Compliance with FLPMA, NEPA, and all other relevant Federal laws, executive orders, and BLM policies;
2. To the extent consistent with Federal law, the lands will be managed consistently with the California Department of Parks and Recreation OHMVR Division's Strategic Plan and the Off-Highway Motorized Vehicle Recreation Act, which include policies for managing both environmental resources and recreational activities in a sustainable manner;
3. The Plan Amendment/RAMP/General Plan will recognize valid existing rights;
4. Public involvement and participation will be an integral part of the planning process; and
5. Where existing planning decisions are still valid, those decisions may remain unchanged and be incorporated into the new Plan Amendment/RAMP/General Plan.
You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or using one of the methods listed in the
The BLM will utilize and coordinate the NEPA scoping process to help fulfill the public involvement process under the National Historic Preservation Act (54 U.S.C. 306108) as provided in 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources. The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources, will be given due consideration. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the EIS as a cooperating agency.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. The minutes and list of attendees for each scoping meeting will be available to the public and open for 30 days after the meeting to any participant who wishes to clarify the views he or she expressed.
The BLM will evaluate identified issues to be addressed, and will place them into one of three categories:
1. Issues to be resolved in the CDCA Plan Amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this CDCA Plan Amendment.
The BLM will provide an explanation in the Scoping Report or the EIS/EIR as to why an issue was placed in category two or three. The public is also encouraged to help identify any management questions and concerns that should be addressed by the project. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns. The BLM will use an interdisciplinary approach to develop the CDCA Plan Amendment in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: Planning, minerals and geology, outdoor recreation, archaeology, paleontology, wildlife, botany, lands and realty, hydrology, soils, sociology and economics.
40 CFR 1501.7 and 43 CFR 1610.2
Bureau of Land Management, Interior.
Notice.
The Assistant Secretary of the Interior for Land and Minerals Management proposes to modify, on behalf of the Bureau of Land Management (BLM), Public Land Order (PLO) No. 184 by opening the public land to all forms of appropriation and entry under the public land laws to provide for the disposal of small, fragmented, isolated parcels that are largely intermingled within residential areas. The public lands will remain closed to location and entry under the United States mining and mineral leasing laws. This notice gives the public an opportunity to comment on the application and to request a public meeting.
Comments and public meeting requests must be received on or before May 11, 2015.
Comments and meeting requests should be sent to the BLM Colorado State Office, 2850 Youngfield Street, Lakewood, CO 80215–7093.
John D. Beck, Chief, Branch of Lands and Realty, 303–239–3882. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The BLM filed an application requesting the Assistant Secretary for Land and Minerals Management to modify PLO No. 184, by opening the following described public lands to all forms of appropriation and entry under the public land laws, but not to the United States mining and mineral leasing laws, subject to valid existing rights, other segregations of record, and the requirements of applicable law:
The areas described aggregate approximately 219 acres in Lake County.
The Assistant Secretary for Land and Minerals Management approved the BLM's petition/application; therefore, the petition constitutes a withdrawal modification proposal of the Secretary of the Interior (43 CFR 2310.1–3(e)).
The purpose of the withdrawal modification is to allow the BLM the ability to dispose of small, fragmented, isolated parcels that are largely intermingled within residential areas. The lands will remain closed to location and entry under the United States mining and mineral leasing laws.
The use of a right-of-way, interagency or cooperative management agreement would not allow for title transfer in cases where it is determined to be in the public interest to dispose of highly-fragmented, isolated parcels.
There are no suitable alternative sites available.
Water will not be needed to fulfill the purpose of the requested withdrawal modification.
Records relating to the application may be examined by contacting Andy Senti, BLM Colorado State Office at the above address or by telephone at 303–239–3713.
For the period until May 11, 2015, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal modification application may present their views in writing to the BLM Colorado State Office at the address noted above. Comments, including names and street addresses of respondents, will be available for public review at the BLM Colorado State Office, at the address above, during regular business hours, 9 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
Before including your address, phone number, email address, or any other personal identifying information in your comments, you should be aware that your entire comment —including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal modification. All interested persons who desire a public meeting for the purpose of being heard on the proposed withdrawal modification must submit a written request to the BLM Colorado State Director no later than May 11, 2015. If the authorized officer determines that a public meeting will be held, a notice of the time and place will be published in the
Licenses, permits, cooperative agreements or discretionary land use authorizations of a temporary nature or the disposal of the mineral or vegetative resources other than under the mining and mineral leasing laws may be permitted if the use is consistent with the management objectives for the area.
This withdrawal modification application will be processed in accordance with the regulations set forth in 43 CFR 2310.3,
Bureau of Land Management, Department of the Interior.
Notice.
The purpose of this notice is to reopen the request for public nominations for the Desert Advisory Council (DAC). Council members provide advice and recommendations to the BLM on the management of public lands in Southern California.
All nominations must be received no later than March 11, 2015.
Nominations should be sent to Teresa Raml, District Manager, Bureau of Land Management, California Desert District Office, 22835 Calle San Juan De Los Lagos, Moreno Valley, CA 92553.
Stephen Razo, BLM California Desert District External Affairs, 22835 Calle San Juan De Los Lagos, Moreno Valley, CA 92553–9046, (951) 697–5217. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The California Desert District Advisory Council is comprised of 15 private individuals who represent different interests and advise BLM officials on policies and programs concerning the management of over 10 million acres of public land in Southern California. The Council meets in formal session three to four times each year in various locations throughout the BLM California Desert District. Council members serve without compensation other than travel expenses. Members serve three-year terms and may reapply to be nominated for reappointment to an additional three-year term.
Section 309 of the Federal Land Policy and Management Act directs the Secretary of the Interior to involve the public in planning and issues related to management of BLM-administered lands. The Secretary also selects Council nominees consistent with the requirements of the Federal Advisory Committee Act (FACA), which requires nominees appointed to the Council be balanced in terms of points of view and representative of the various interests concerned with the management of the public lands.
The Council also is balanced geographically, and the BLM will try to find qualified representatives from areas throughout the California Desert District. The District covers portions of eight counties, and includes more than 10 million acres of public land in the California Desert Conservation Area of Mono, Inyo, Kern, Los Angeles, San Bernardino, Riverside, and Imperial counties, as well as 300,000 acres of scattered parcels in San Diego, western Riverside, western San Bernardino, and Los Angeles counties (known as the South Coast).
Public notice begins with the publication date of this notice and nominations will be accepted for 30 days from the date of this notice. The seven positions to be filled include one elected official, one representative of non-renewable resources groups or organizations, one representative of recreation groups or organizations, one representative of wildlife groups or organizations, and two representatives of the public-at-large. These six positions became vacant on December 7, 2014. The seventh position is a representative of the renewable energy industry. This position became vacant on January 9, 2015. The BLM was notified of this pending vacancy during the initial nomination period. The BLM is issuing a second call for nominations to notify the public of this vacant position and to reopen the nomination period for those positions listed in the initial call for nominations. If you have already submitted your DAC nomination materials for 2015, you will not need to resubmit.
Any group or individual may nominate a qualified person, based upon education, training, and knowledge of the BLM, the California Desert, and the issues involving BLM-administered public lands throughout Southern California. Qualified individuals may also nominate themselves.
The nomination form may be found on the Desert Advisory Council Web
• Letters of reference from represented interests or organizations.
• A completed background information nomination form.
• Any other information that addresses the nominee's qualifications.
Nominees unable to download the nomination form may contact the BLM California Desert District External Affairs staff at (951) 697–5217 to request a copy. Advisory Council members are appointed by the Secretary of the Interior. The Obama Administration prohibits individuals who are currently federally registered lobbyists to serve on all FACA and non-FACA boards, committees or councils.
43 CFR 1784.4–1.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), in the unlawful importation, sale for importation, and sale after importation by respondents The Brinkmann Corporation (“Brinkmann”) of Dallas, Texas; Outdoor Leisure Products, Inc. (“OLP”) of Neosho, Missouri; Dongguan Kingsun Enterprises Co., Ltd. (“Kingsun”) of Dongguan City, China; Academy, Ltd. (“Academy”) of Katy, Texas; and Ningbo Huige Outdoor Products Co., Ltd. (“Huige”) of Zhejiang Province, China, of certain multiple mode outdoor grills and parts thereof by reason of infringement of one or more claims of U.S. Patent No. 8,381,712 (“the '712 patent”). The Commission also found defaulted respondent Keesung Manufacturing Co., Ltd. (“Keesung”) of Guangzhou, China in violation pursuant to Section 337(g)(1). The Commission's determination is final, and the investigation is terminated.
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on September 26, 2013, based on a complaint filed on behalf of A&J Manufacturing, LLC of St. Simons, Georgia and A&J Manufacturing, Inc. of Green Cove Springs, Florida (collectively, “A&J” or “Complainants”). 78
On January 9, 2014, the Commission determined not to review an initial determination finding respondent Keesung in default. Order No. 16 (Dec. 20, 2013).
On June 24, 2014, the Commission affirmed-in-part and vacated-in-part an initial determination granting-in-part a motion for summary determination of non-infringement filed by Char-Broil, Fudeer, OLP, Kingsun, Tractor Supply Co., and Chant Kitchen Equipment (HK) Ltd. The Commission found that Complainants admit that the following redesigned grills do not infringe the '712 patent: (1) Chant/Tractor Supply's New Model 1046761; (2) Rankam's Member's Mark Grill, Model No. GR2071001–MM (Ver. 2) and (3) Rankam's Smoke Canyon Grill, Model No. GR2034205–SC (Ver. 2). Comm'n Op. at 1 (Jun. 24, 2014). The Commission found the other redesigned products at issue were within the scope of the investigation.
On July 31, 2014, the Commission determined not to review an initial determination granting a motion for partial termination of the investigation based on withdrawal of allegations in the complaint concerning the two asserted design patents.
On September 26, 2014, the ALJ issued the final Initial Determination (“ID”), finding a violation of section 337 as to respondents Brinkmann, OLP, Kingsun, Academy, and Huige based upon his determinations: (i) That certain, but not all, accused products infringe at least one claim of the '712 patent; (ii) that the domestic industry requirement has been satisfied with respect to the '712 patent; and (iii) that the asserted claims of the '712 patent have not been shown by clear and convincing evidence to be invalid. On October 9, 2014, the ALJ issued his Recommended Determination on remedy and bonding.
On October 14, 2014, A&J filed a petition for review of certain aspects of the final ID's findings concerning claim construction and infringement. On the same day, Brinkmann, OLP, and Academy together sought review of certain aspects of the final ID's findings regarding validity. OLP separately challenged certain aspects of the final ID's findings regarding claim construction and infringement. Academy and Huige petitioned for review of the ID's determination (Order
On December 2, 2014, the Commission determined to review the final ID in part and requested briefing on issues it determined to review, and on remedy, the public interest, and bonding. 79
On December 12, 2014, A&J and OUII each filed initial written submissions regarding issues on review, remedy, the public interest, and bonding. On the same day, the respondents jointly filed their initial written submission regarding issues on review, remedy, the public interest, and bonding. Responses to the initial written submissions were filed on December 19, 2014.
Having examined the record of this investigation, including the parties' submissions and responses thereto, the Commission has determined that 35 U.S.C. 112, ¶ 6 applies to the “exhaust means” and “exhaust” limitations in claims 10 and 16. Based on the Commission's interpretation of claims 10–16, the Commission has determined (i) that the accused Brinkmann 810–3821 grill infringes claims 10, 11, 13, 15, and 16; (ii) that the accused Academy/Huige grills infringe claims 10–13, 15, and 16; and (iii) that the other accused Brinkmann grills, the OLP/Kingsun redesigned grills, the OLP/Kingsun original grills, and the Char-Broil/Fudeer grills do not infringe any of claims 10–16 of the '712 patent. The Commission vacates the ID's finding that the DGB730SNB–D grill does not infringe claims 1, 4, and 6–8 of the '712 patent. The Commission also reverses the ID's finding that the DGJ810CSB–D grill does not infringe claims 1, 4, and 6–8 of the '712 patent. With respect to the accused Char-Broil/Fudeer grill, Model No. 463724512, the Commission has determined to affirm, with modified reasoning, the ID's finding that the grill does not infringe any asserted claims of the '712 patent. The Commission has further determined to affirm, with modified reasoning, the ID's finding that the asserted claims of the '712 patent have not been proven invalid as obvious. Accordingly, the Commission has found a violation of section 337 as to respondents Brinkmann, OLP, Kingsun, Academy, and Huige, and defaulted respondent Keesung.
The Commission has determined that the appropriate form of relief is a limited exclusion order prohibiting the unlicensed entry of covered multiple mode outdoor grills and parts thereof manufactured by, for, or on behalf of Brinkmann, OLP, Kingsun, Academy, Huige, and Keesung, or any of their affiliated companies, parents, subsidiaries, licensees, or other related business entities, or their successors or assigns. The Commission has also determined to issue cease and desist orders prohibiting Brinkmann, OLP, and Academy from further importing, selling, and distributing articles that infringe certain claims of the '712 patent in the United States. The orders include the following exemptions: (1) Conduct licensed or authorized by the owner of the '712 patent; (2) conduct related to covered products imported by or for the United States; and (3) the importation, distribution, and sale of parts for use in the maintenance, service, or repair of covered products purchased prior to the effective date of the orders. The Commission has carefully considered the submissions of the parties and has determined that the public interest factors enumerated in section 337(d)(1), (f)(1), and (g)(1) do not preclude issuance of its orders.
Finally, the Commission has determined that excluded multiple mode outdoor grills and parts thereof may be imported and sold in the United States during the period of Presidential review (19 U.S.C. 1337(j)) with the posting of a bond of 100 percent of the entered value for all covered articles manufactured by, for, or on behalf of Keesung, and the posting of a bond of zero percent for all covered articles manufactured by, for, or on behalf of Brinkmann, OLP, Kingsun, Academy, and Huige. The Commission's Orders and Opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Office on Violence Against Women, Department of Justice.
60-day notice.
The Department of Justice, Office on Violence Against Women (OVW) 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.
Comments are encouraged and will be accepted for 60 days until April 10, 2015.
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 Cathy Poston, Office on Violence Against Women, at 202–514–5430 or
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1) Type of Information Collection: Extension of a currently approved collection.
(2) Title of the Form/Collection: Semi-Annual Progress Report for Grantees from the Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program.
(3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: Form Number: 1122–0006. U.S. Department of Justice, Office on Violence Against Women.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: The affected public includes the approximately 200 grantees from the Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program (Arrest Program) which recognizes that sexual assault, domestic violence, dating violence, and stalking are crimes that require the criminal justice system to hold offenders accountable for their actions through investigation, arrest, and prosecution of violent offenders, and through close judicial scrutiny and management of offender behavior.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that it will take the approximately 200 respondents (Arrest Program grantees) approximately one hour to complete a semi-annual progress report. The semi-annual progress report is divided into sections that pertain to the different types of activities in which grantees may engage. An Arrest Program grantee will only be required to complete the sections of the form that pertain to its own specific activities.
(6) An estimate of the total public burden (in hours) associated with the collection: The total annual hour burden to complete the data collection forms is 400 hours, that is 200 grantees completing a form twice a year with an estimated completion time for the form being one hour.
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.
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation (NSF) announces its intent to hold proposal review meetings throughout the year. The purpose of these meetings is to provide advice and recommendations concerning proposals submitted to the NSF for financial support. The agenda for each of these meetings is to review and evaluate proposals as part of the selection process for awards. The review and evaluation may also include assessment of the progress of awarded proposals. The majority of these meetings will take place at NSF, 4201 Wilson Blvd., Arlington, Virginia 22230.
These meetings will be closed to the public. The proposals being reviewed include information of a proprietary or confidential nature, including technical information; financial data, such as salaries; and personal information concerning individuals associated with the proposals. These matters are exempt under 5 U.S.C. 552b(c), (4) and (6) of the Government in the Sunshine Act. NSF will continue to review the agenda and merits of each meeting for overall compliance of the Federal Advisory Committee Act.
These closed proposal review meetings will not be announced on an individual basis in the
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to an October 27, 2014, request from Zion
Please refer to Docket ID NRC–2015–0024 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
John B. Hickman, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–3017, email:
The ZNPS facility was shut down on February 21, 1997, and is currently in a permanently shut-down and defueled condition. Zion
By letter dated October 27, 2014, (ADAMS Accession Number ML14309A197) ZS requested an exemption from Part 20 of Title 10 of the
Pursuant to 10 CFR 20.2301, the Commission may, upon application by a licensee or upon its own initiative, grant an exemption from the requirements of regulations in 10 CFR part 20 if it determines the exemption is authorized by law and would not result in undue hazard to life or property. There are no provisions in the Atomic Energy Act of 1954, as amended (or in any other Federal statute) that impose a requirement to investigate and report on low-level radioactive waste shipments that have not been acknowledged by the recipient within 20 days of transfer. Therefore, the NRC concludes that there is no statutory prohibition on the issuance of the requested exemption and the NRC is authorized to grant the exemption by law.
The NRC finds that the underlying purpose of 10 CFR part 20, Appendix G, Section III.E is to require licensees to investigate, report, and trace radioactive shipments that have not reached their destination, as scheduled, for unknown reasons. Data from San Onofre Nuclear Generating Station found that rail shipments took over 16 days on average, and on occasion, took up to 57 days. The NRC acknowledges that, based on the history of low-level radioactive waste shipments from the San Onofre Nuclear Generating Station and Humboldt Bay Power Plant sites, the need to investigate and report on shipments that take longer than 20 days could result in an excessive administrative burden on the licensee. For rail shipments, ZS will require electronic data tracking system interchange, or similar tracking systems that allow monitoring the progress of the shipments by the rail carrier on a daily basis. Because of the oversight and monitoring of radioactive waste shipments throughout the entire journey from ZNPS to the disposal site, it is unlikely that a shipment could be lost, misdirected, or diverted without the knowledge of the carrier or ZS. Furthermore, by extending the elapsed time for receipt acknowledgment to 45 days before requiring investigations and reporting, a reasonable upper limit on shipment duration (based on historical analysis) is still maintained if a breakdown of normal tracking systems were to occur. Consequently, the NRC finds that there is no hazard to life or property by extending the investigation and reporting time for low-level radioactive waste shipments from 20 to 45 days for rail shipments. The NRC also finds that the underlying purpose of 10 CFR part 20, Appendix G, Section III.E will be met.
Accordingly, the NRC has determined that, pursuant to 10 CFR 20.2301, the exemption is authorized by law and will not result in undue hazard to life or property. Therefore, the NRC hereby grants Zion
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Draft regulatory guide; request for comment and extension of comment period.
On December 11, 2014, the U.S. Nuclear Regulatory Commission (NRC) solicited comments on draft regulatory guide (DG), DG–4023, “Aquatic Environmental Studies for Nuclear Power Stations.” The public
The due date of comments requested in the document published on December 11, 2014 (79 FR 73646) is extended. Comments should be filed no later than March 11, 2015. 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 on or before this date.
You may submit comment 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 “Obtaining Information and Submitting Comments” in the
Ryan Whited, Office of New Reactors, telephone: 301–415–1154, email:
Please refer to Docket ID NRC–2014–0256 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
•
•
•
Please include Docket ID NRC–2014–0256 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.
On December 11, 2014, the NRC solicited comments on draft regulatory guide, DG–4023, “Aquatic Environmental Studies for Nuclear Power Stations.” It is a proposed new regulatory guide, and it is temporarily identified by its task number, DG–4023. The draft guide provides technical guidance for aquatic environmental studies and analyses supporting decisions related to nuclear power stations by the NRC. For purposes of DG–4023, the term “aquatic” encompasses freshwater, estuarine, and marine environments. The draft guide addresses wetlands containing submerged aquatic vegetation but does not address wetlands also containing emergent vegetation. Instead, NRC's Regulatory Guide 4.11, “Terrestrial Environmental Studies for Nuclear Power Stations,” addresses such wetland features, along with the terrestrial environment. Although the NRC is issuing separate regulatory guides addressing terrestrial and aquatic environmental studies, it recognizes that aquatic and terrestrial ecological issues often overlap and are often interrelated.
The public comment period was originally scheduled to close on February 9, 2015. The NRC has decided to extend the public comment period on this document until March 11, 2015, to allow more time for members of the public to submit their comments.
For the Nuclear Regulatory Commission.
9, 16, 23, March 2, 9, 16, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of February 9, 2015.
There are no meetings scheduled for the week of February 23, 2015.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of March 9, 2015.
There are no meetings scheduled for the week of March 16, 2015.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Glenn Ellmers at 301–415–0442 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Nuclear Regulatory Commission.
10 CFR 2.206 request; receipt.
The U.S. Nuclear Regulatory Commission (NRC) is giving notice that by petition dated July 18, 2014, as supplemented, Mr. Thomas Saporito (the petitioner) requested that the NRC take enforcement action with regard to Florida Power & Light Company (FPL or the licensee). The petitioner's requests are included in the
Please refer to Docket ID NRC–2015–0011 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
By petition dated July 18, 2014 (ADAMS Accession No. ML14202A520), as supplemented by email (ADAMS Accession No. ML14202A521) and the petitioner's address to the Petition Review Board on September 3, 2014 (ADAMS Accession No. ML14266A123), the petitioner requested that the NRC take enforcement action against FPL due to increased ultimate heat sink (UHS) temperatures at Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point). The petition states concern with the impact of the higher UHS temperatures on the environment and the licensee's capability to mitigate accidents at the higher temperatures.
The petitioner requested that the NRC take escalated enforcement action against FPL, specifically to issue FPL a violation and civil penalty, and to issue FPL a confirmatory order to maintain Turkey Point in a cold shutdown condition until FPL completes independent assessments of the UHS temperature increase and its impacts on safety-related equipment. As the basis for this request, the petitioner stated that operation of Turkey Point at a UHS temperature greater than 100 degrees Fahrenheit will significantly jeopardize public health and safety and the environment.
The request is being treated pursuant to Section 2.206 of Title 10 of the
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an addition of Priority Mail Contract 107 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2015–26 and CP2015–35 to consider the Request pertaining to the proposed Priority Mail Contract 107 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than February 11, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015–26 and CP2015–35 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than February 11, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an addition of Priority Mail Contract 110 to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2015–29 and CP2015–38 to consider the Request pertaining to the proposed Priority Mail Contract 110 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than February 10, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints James F. Callow to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2015–29 and CP2015–38 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, James F. Callow is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than February 10, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
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.
Applicants request an order that would permit (a) series of certain open-end management investment companies to issue shares (“Shares”) redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain series to pay redemption proceeds, under certain circumstances, more than seven days after the tender of Shares for redemption; (d) certain affiliated persons of the series to deposit securities into, and receive securities from, the series in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts (“UITs”) outside of the same group of investment companies as the series to acquire Shares.
The Victory Portfolios (“Victory Trust”), Victory Capital Management Inc. (“VCM”), Victory Capital Advisers, Inc. (“VCA”), Compass EMP Funds Trust (“Compass Trust” and, together with the Victory Trust, the “Trusts”) and Quasar Distributors, LLC (“Quasar”).
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on March 2, 2015, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549; Applicants: James G. Silk, Willkie Farr & Gallagher LLP, 1875 K Street NW., Washington, DC 20006 and Jay G. Baris, Morrison & Foerster LLP, 250 West 55th Street, New York, NY 10019.
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. Each Trust is a Delaware statutory trust and is registered under the Act as an open-end management investment company with multiple series. Each series for which a Trust seeks the requested order will operate as an exchange traded fund (“ETF”).
2. VCM will be the investment adviser to the series of the Trusts identified and described in Appendix A to the application (“Initial Funds”). Each Adviser (as defined below) will be registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser may enter into sub-advisory agreements with one or more investment advisers to act as sub-advisers to particular Funds (as defined below) (each, a “Sub-Adviser”). Any Sub-Adviser will either be registered under the Advisers Act or will not be required to register thereunder.
3. Each Trust has entered into a distribution agreement with one or more distributors. Each distributor for a Fund will be a broker-dealer (“Broker”) registered under the Securities Exchange Act of 1934 (“Exchange Act”) and will act as distributor and principal underwriter (“Distributor”) for one or more of the Funds. No Distributor will be affiliated with any national securities exchange, as defined in section 2(a)(26) of the Act (“Exchange”). The Distributor for each Fund will comply with the terms and conditions of the requested order. VCA, a registered broker-dealer under the Exchange Act, is a Delaware corporation and acts as Distributor for the Funds under the Victory Trust. Quasar, a registered broker-dealer under the Exchange Act, is a Delaware limited liability company and acts as the Distributor for the Funds under the Compass Trust.
4. Applicants request that the order apply to the Initial Funds and any additional series of the Trusts, and any other open-end management investment company or series thereof, that may be created in the future (“Future Funds” and together with the Initial Funds, “Funds”), each of which will operate as an ETF and will track a specified index comprised of domestic or foreign equity and/or fixed income securities (each, an “Underlying Index”). Any Future Fund will (a) be advised by VCM or an entity controlling, controlled by, or under common control with VCM (each, an “Adviser”) and (b) comply with the terms and conditions of the application.
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. The Underlying Indexes will be comprised solely 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 that will be comprised solely 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. Each Trust may issue 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 using a representative sampling strategy will not be expected to track the performance of its Underlying Index with the same degree of accuracy as would an investment vehicle that invested in every Component Security of the Underlying Index with the same weighting as the Underlying Index. Applicants expect that each Fund will have an annual tracking error relative to the performance of its Underlying Index of less than 5%.
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.
11. Applicants propose that each Self-Indexing Fund will post on its Web site, on each day the Fund is open, including any day when it satisfies redemption requests as required by section 22(e) of the Act (a “Business Day”), before commencement of trading of Shares on the Listing Exchange, the identities and quantities of the Portfolio Holdings 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 also provide an additional mechanism for addressing any such potential conflicts of interest.
12. 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.
13. The Adviser and any Sub-Adviser has adopted or will adopt, pursuant to Rule 206(4)–7 under the Advisers Act, written policies and procedures designed to prevent violations of the Advisers Act and the rules thereunder. These include policies and procedures designed to minimize potential conflicts of interest among the Self-Indexing Funds and the Affiliated Accounts, such as cross trading policies, as well as those designed to ensure the equitable allocation of portfolio transactions and brokerage commissions. In addition, VCM will adopt policies and procedures as required under section 204A of the Advisers Act, which are reasonably designed in light of the nature of its business to prevent the misuse, in violation of the Advisers Act or the Exchange Act or the rules thereunder, of material non-public information by the VCM or an associated person (“Inside Information Policy”). Any other Adviser or Sub-Adviser will be required to adopt and maintain a similar Inside Information Policy. In accordance with the Code of Ethics
14. 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. Applications for prior orders granted to Self-Indexing Funds have received relief to operate such funds on the basis discussed above.
15. 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”).
16. 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;
17. Creation Units will consist of specified large aggregations of Shares (
18. Each Business Day, before the open of trading on the Exchange on which Shares are primarily listed (“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.
19. 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.
20. 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.
21. 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.
22. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Fund, or tender such Shares for redemption to
23. Neither the Trusts 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 22(e) of the Act and rule 22c–1 under the Act, under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act, and 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.
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 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 fourteen (14) calendar days. Accordingly, with respect to Foreign Funds only, applicants hereby request relief under section 6(c) from the requirement imposed by section 22(e) to allow Foreign Funds to pay redemption proceeds within fourteen calendar days following the tender of Creation Units for redemption.
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 fourteen calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants suggest that a redemption payment occurring within fourteen 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 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 and any other broker-dealer from knowingly selling the investment company's 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.
11. Applicants request an exemption to permit registered management investment companies and 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 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”), to acquire Shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any Broker registered under the Exchange Act, to sell Shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act.
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 a Fund.
15. Applicants propose other conditions to limit the potential for undue influence over the 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 a Fund) will cause a 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 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 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 a 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 a Fund, in connection with the investment by the Fund of Funds in the Fund. Applicants state that any sales
17. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund 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. To ensure a Fund of Funds is aware of the terms and conditions of the requested order, the Fund of Funds will enter into an agreement with the Fund (“FOF Participation Agreement”). The FOF Participation Agreement will include an acknowledgement from the Fund of Funds that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Applicants also note that a Fund may choose to reject a direct purchase of Shares in Creation Units by a Fund of Funds. To the extent that a Fund of Funds purchases Shares in the secondary market, a 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 a Trust or such Funds, may be deemed affiliated persons of that 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 a Fund that is an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds to sell its Shares to and redeem its 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, the Shares of such Fund will be listed on an Exchange.
3. None of the Trusts or 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 to a Self-Indexing Fund, directly or indirectly, will cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Self-Indexing Fund) to acquire any Deposit Instrument for a Self-Indexing Fund through a transaction in which the Self-Indexing Fund could not engage directly.
1. The members of a Fund of Funds' 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 a Fund of Funds' 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 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 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 Fund of Funds' Sub-Advisory Group with respect to a 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 a Fund to influence the terms of any services or transactions between the Fund of Funds or Fund of Funds 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 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 a Fund or Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of a Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board of the Fund, including a majority of the directors or trustees who are not “interested persons” within the meaning of Section 2(a)(19) of the Act (“non-interested Board members”), will determine that any consideration paid by the 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 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 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 a Fund under rule 12b–l under the Act) received from a 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, or trustee or Sponsor of an Investing Trust, or its affiliated person by the Fund, in connection with the investment by the Fund of Funds in the 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 a 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 Fund, in connection with the investment by the Investing Management Company in the 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 a Fund) will cause a Fund to purchase a security in any Affiliated Underwriting.
7. The Board of a Fund, including a majority of the non-interested Board members, will adopt procedures reasonably designed to monitor any
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 a Fund of Funds in the securities of the 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 Board's determinations were made.
9. Before investing in a Fund in excess of the limit in section 12(d)(1)(A), a Fund of Funds and the applicable 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 Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Fund of the investment. At such time, the Fund of Funds will also transmit to the Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The 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 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 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 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 Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to add new Section 20, Exchange Sharing of Participant-Designated Risk Settings, to Chapter VI, Trading Systems, of the Exchange's Options rules to authorize the Exchange to share any Participant-designated risk settings in the Exchange's Trading System with the Clearing Participant that clears transactions on behalf of the Participant.
The text of the proposed rule change is below; proposed new language is
Sec. 1–19. No change.
The Exchange may share any Participant-designated risk settings in the Trading System with the Clearing Participant that clears transactions on behalf of the Participant.
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 is proposing to adopt new Section 20, Exchange Sharing of Participant-Designated Risk Settings, in Chapter VI, Trading Systems, of the BX Rules in order to authorize the Exchange to share any Participant-designated risk settings in Exchange's Trading System with the Clearing Participant that clears transactions on behalf of the Participant. Pursuant to Chapter II, Participation, Section 2, Requirements for Options Participation, of the BX Rules, Options Participants must be Options Clearing Participants or establish a clearing arrangement with a Clearing Participant. Every Clearing Participant is responsible for the clearance of BX Options Transactions
At this time, the risk settings covered by this proposal are set forth in Chapter VI, Trading Systems, Section 19, Risk Monitor Mechanism.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The proposed rule change will allow the Exchange to directly provide a Participant's designated risk settings to the Clearing Participant that clears trades on behalf of the Participant. Because a Clearing Participant that executes a clearing Letter of Guarantee on behalf of a Participant guarantees all transactions of that Participant, and therefore bears the risk associated with those transactions, it is appropriate for the Clearing Participant to have knowledge of what risk settings the Participant may utilize within the Exchange's trading system. The proposal will permit Clearing Participants who have a financial interest in the risk settings of Participants with whom the Clearing Participant has entered into a clearing Letter of Guarantee to better monitor and manage the potential risks assumed by Clearing Participants, thereby providing Clearing Participants with greater control and flexibility over setting their own risk tolerance and exposure and aiding Clearing Participants in complying with the Act. To the extent a Clearing Participant might reasonably require a Participant to provide access to its risk setting as a prerequisite to continuing to clear trades on the Participant's behalf, the Exchange's proposal to share those risk settings directly reduces the administrative burden on Participants and ensures that Clearing Participants are receiving information that is up to date and conforms to the settings active in the Exchange's trading system.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) [sic] 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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.
On October 21, 2014, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to reflect a change, as described below, to the
Specifically, the proposal seeks to reflect a change to the Fund's limitation on investments in certain asset-backed securities (“ABS”).
The Exchange states that this change to the Fund's investment limitations would allow the Adviser to better achieve the Fund's investment objective to seek maximum current income, consistent with preservation of capital and daily liquidity. In addition, according to the Exchange, the Fund's increased investment in ABS that are not mortgage-related would continue to adhere to the Fund's investment strategy of investing in short duration fixed income securities.
The Exchange states that there is no change to the Fund's investment objective and represents that the Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600. In addition, the Exchange represents that, other than the proposed change described above and in the Notice, all other facts presented and representations made in the Prior Release remain unchanged.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by March 2, 2015. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by March 16, 2015.
The Commission asks that commenters address the sufficiency and merit of the Exchange's and commenter's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change. In particular, the Commission seeks comment on the following:
1. Does the Notice contain sufficient information about the Fund's proposed investments in ABS for commenters to evaluate the liquidity and transparency of the underlying markets for those ABS?
2. What are commenters' views on the liquidity of the Fund's proposed holdings in ABS? What are commenters' views on pricing transparency in the market for these ABS? Does the pricing transparency vary for investors, market makers, and other market participants? If so, how and why?
3. The Exchange states that, because the preponderance of the Fund's investments in ABS will be in investment-grade instruments, “the Adviser does not expect that the proposed additional investments in ABS that are not mortgage-related will expose the Fund to additional liquidity risk.” Do commenters agree? Why or why not?
4. Do commenters believe that the proposal to increase the Fund's holdings in ABS would have any effect on the arbitrage mechanism with respect to the Fund? If so, what effect and why? If not, why not? Do commenters believe that the proposed change in the Fund's investments would have any effect on market pricing of the Fund relative to its net asset value? Why or why not?
5. What are commenters' views on whether the Fund's proposal to increase its ABS holdings would affect the ability of market makers to make markets in the Shares of the Fund?
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 modify the list of securities eligible for the Select Symbol program under Rule 7018(a)(4).
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
The purpose of the proposed rule change is to replace the security of a company that is eligible for reduced fees under the Select Symbol program under Rule 7018(a)(4). NASDAQ recently adopted the Select Symbol program,
The Exchange believes that the proposed rule change is consistent with Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, the change does not alter the meaning or application of the fees and credits provided under Rule 7018(a)(4), but rather affects only which securities are included in the Select Symbol program. The Select Symbol program is designed to benefit market quality and ultimately, price competition among market participants on the Exchange, and the proposed change to the program furthers those goals. Accordingly, the proposed change does not place any burden on competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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 Brent J. Fields, 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”),
CME is filing a proposed rule change that is limited to its business as a derivatives clearing organization (“DCO”). More specifically, the proposed change would amend the text of current CME Rule 814 to clarify certain operational details regarding current CME settlement cycles.
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 derivatives clearing organization with the Commodity Futures Trading Commission (“CFTC”) and currently offers clearing services for many different futures and swaps products. With this filing, CME proposes to make rulebook changes that are limited to its business clearing futures and swaps under the exclusive jurisdiction of the CFTC. More specifically, the proposed changes would amend the text of current CME Rule 814 to clarify certain operational details regarding current CME settlement cycles.
The first proposed change to CME Rule 814 would add further detail regarding the settlement cycle for commodity contracts that are options. The current version of Rule 814 is silent on the settlement cycle for commodity contracts that are options, and so additional language is proposed to ensure that the market is aware that settlement of option value operates differently than settlement for non-option commodity contracts. The proposed rule change is consistent with the current settlement process so no operational changes are needed to implement the proposed rules. The second proposed change is to amend Rule 814 so that it explicitly reflects the fact that the current CME settlement process results in outstanding exposures being settled to zero fair value during each settlement cycle. The third proposed change is to add further clarity regarding settlement finality at the CME clearing house. Lastly, certain terms in the Rule 814 text are being modified in order to provide additional clarity to the marketplace and regulators. As described above, none of these revisions would change any aspect of current operations but, rather, would merely clarify certain operational details of the clearing cycle currently in place in the text of Rule 814.
The proposed rule change that is described in this filing is limited to CME's business as a derivatives clearing organization clearing products under the exclusive jurisdiction of the CFTC. CME has not cleared security based swaps and does not plan to and therefore the proposed rule change does not impact CME's security-based swap clearing business in any way. The proposed rule change will become effective immediately. CME notes that it has also submitted the proposed rule change that is the subject of this filing
CME believes the proposed rule change is consistent with the requirements of the Act including Section 17A of the Act.
Furthermore, the proposed change is limited to CME's futures and swaps clearing businesses, which means it is limited in its effect to products that are under the exclusive jurisdiction of the CFTC. As such, the proposed 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. 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 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 CME's futures and swaps clearing businesses, 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. CME is making the aforementioned changes simply to clarify current settlement processes; there are no operational changes. Further, the changes are limited to CME's futures and swaps clearing businesses and, as such, do not affect the security-based swap clearing activities of CME in any way and therefore do not impose any burden on competition that is inappropriate in furtherance of the purposes of the Act.
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, 21049–1090.
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–2015–003 and should be submitted on or before March 2, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Payment, Clearing and Settlement Supervision Act” or “Clearing Supervision Act”)
This advance notice is filed by OCC in order to set forth a proposed Capital Plan for raising additional capital that would support OCC's function as a systemically important financial market utility and facilitate OCC's compliance with new regulatory requirements applicable to systemically important financial market utilities that have been proposed by the Commission but have not yet been adopted.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A) and (B) below, of the most significant aspects of these statements.
Written comments on the advance notice were not and are not intended to be solicited with respect to the advance notice and none have been received.
The proposed change sets forth the Capital Plan under which the Stockholder Exchanges would make an additional capital contribution and commit to replenishment capital (“Replenishment Capital”) in circumstances discussed below, and would receive, among other things, the right to receive dividends from OCC. In addition to the additional capital contribution and Replenishment Capital, the main features of the Capital Plan are: (i) A policy establishing OCC's fees at a level that would be sufficient to cover OCC's estimated operating expenses plus a “Business Risk Buffer” as described below (“Fee Policy”), (ii) the Refund Policy [sic], and (iii) a policy for calculating the amount of dividends to be paid to the options exchanges owning equity in OCC (“Dividend Policy”). The Capital Plan is proposed to be implemented on or about February 27, 2015, subject to all necessary regulatory approvals.
The purpose of this proposed change is to implement the Capital Plan, which would significantly increase OCC's capital in connection with its increased responsibilities as a systemically important financial market utility, and which OCC believes would facilitate OCC's compliance with new regulatory requirements applicable to such systemically important financial market utilities that have been proposed by the Commission but have not yet been adopted.
OCC is a clearing agency registered with the Commission and is also a derivatives clearing organization (“DCO”) regulated in its capacity as such by the Commodity Futures Trading Commission (“CFTC”). OCC is a Delaware business corporation and is owned equally by the Stockholder Exchanges, five national securities exchanges for which OCC provides clearing services.
OCC has been designated systemically important by the Financial Stability Oversight Council pursuant to the Payment, Clearing and Settlement Supervision Act, and the Commission is OCC's “Supervisory Agency” under Section 803(8) of the Payment, Clearing and Settlement Supervision Act. OCC is therefore a “covered clearing agency” (“CCA”) as defined in proposed amendments to the Commission's Rule 17Ad–22(a)(7) and would be required to comply with the provisions of proposed Rule 17Ad–22 applicable to CCA's, including paragraph (e)(15) thereof.
Proposed Rule 17Ad–22(e)(15) provides:
Each covered clearing agency shall establish, implement, maintain and enforce written policies and procedures reasonably designed to, as applicable: . . . Identify, monitor, and manage the covered clearing agency's general business risk and hold sufficient liquid net assets funded by equity to cover potential general business losses so that the covered clearing agency can continue operations and services as a going concern if those losses materialize, including by:
(i) Determining the amount of liquid net assets funded by equity based upon its general business risk profile and the length of time required to achieve recovery or orderly wind-down, as appropriate, of its critical operations and services if such action is taken;
(ii) Holding liquid net assets funded by equity equal to the greater of either (x) six months of the covered clearing agency's current operating expenses, or (y) the amount determined by the board of directors to be sufficient to ensure a recovery or orderly wind-down of critical operations and services of the covered clearing agency, as contemplated by the plans established under paragraph (e)(3)(ii) of this section, and which:
(A) shall be in addition to resources held to cover participant defaults or other risks covered under the credit risk standard in paragraph (b)(3) or paragraph (e)(4)(i)–(iii) of this section, as applicable, and the liquidity risk standard in paragraph (e)(7)(i) and (ii) of this section; and
(B) Shall be of high quality and sufficiently liquid to allow the covered clearing agency to meet its current and projected operating expenses under a range of scenarios, including adverse market conditions; and
(iii) Maintaining a viable plan, approved by the board of directors and updated at least annually, for raising additional equity should its equity fall close to or below the amount required under paragraph (e)(15)(ii) of this section.
Over the last nine months, OCC has devoted substantial efforts to: (1) Develop a 5-year forward looking model of expenses; (2) quantify maximum recovery and wind-down costs under OCC's Recovery and Wind-Down Plan; (3) assess and quantify OCC's operational and business risks; (4) model projected capital accumulation taking into account varying assumptions concerning business conditions, fee levels, buffer margin levels and refunds; and (5) develop an effective mechanism that provides OCC access to replenishment capital in the event of losses that could cause OCC to be non-compliant with the SEC Proposed Rules. Incorporating the results of those efforts, the proposed change is intended to provide OCC with the means to increase its stockholder equity and, in particular, to obtain timely compliance with Rule 17Ad–22(e)(15)
Using the methods described in detail below, OCC will annually determine a “Target Capital Requirement” consisting of (i) a “Baseline Capital Requirement” equal to the greatest of (x) six months operating expenses for the following year, (y) the maximum cost of the recovery scenario from OCC's Recovery and Wind-Down Plan, and (z) the cost to OCC of winding down operations as set forth in the Recovery and Wind-Down Plan, plus (ii) a “Target Capital Buffer” linked to plausible loss scenarios from operational risk, business risk and pension risk. OCC has determined that its currently appropriate “Target Capital Requirement” is $247 million, reflecting a Baseline Capital Requirement of $117 million, which is equal to six months of projected operating expenses, plus a Target Capital Buffer of $130 million. This Target Capital Buffer would provide a significant capital cushion to offset potential business losses.
As of December 31, 2013, OCC had total shareholders' equity of approximately $25 million,
Various measures were used in determining the appropriate level of capital necessary to comply with the
An analysis was also performed to identify OCC's risk in terms of the regulatory requirements set forth in proposed Rule 17Ad–22(e)(15)(ii). This analysis estimated that, currently, OCC's maximum recovery costs would be $100 million and projected wind-down costs would be $73 million. OCC's projected expenses for 2015 are $234 million, so that six months projected expenses are $234 million/2 = $117 million. The greater of recovery or wind-down costs and six months of operating expenses is therefore $117 million, and OCC's Baseline Capital Requirement (minimum regulatory requirement) is therefore $117 million. OCC then computed the appropriate amount of a Target Capital Buffer from operational risk, business risk, and pension risk. This resulted in a determination that the current Target Capital Buffer should be $130 million. Thus, the Target Capital Requirement is $117 million + $130 million = $247 million.
In order to meet its Target Capital Requirement, and after consideration of available alternatives, OCC's Board approved a proposal from OCC's Stockholder Exchanges under which OCC would meet its Target Capital Requirement of $247 million in early 2015 as follows:
Upon reaching the Target Capital Requirement, the Capital Plan requires OCC to set its fees at a level that utilizes a Business Risk Buffer of 25%. The purpose of this Business Risk Buffer is to ensure that OCC accumulates sufficient capital to cover unexpected fluctuations in operating expenses, business capital needs, and regulatory capital requirements. Furthermore, the Capital Plan requires OCC to maintain Fee, Refund, and Dividend Policies, described in more detail below, which are designed to ensure that OCC's shareholders' equity remains well above the Baseline Capital Requirement. The required Business Risk Buffer of 25% is below OCC's 10-year historical pre-refund average buffer of 31%. The target will remain 25% so long as OCC's shareholders' equity remains above the Target Capital Requirement amount. The reduction in buffer margin from OCC's 10-year average of 31% to 25% reflects OCC's commitment to operating as an industry utility and ensuring that market participants benefit as much as possible from OCC's operational efficiencies in the future. This reduction will permit OCC to charge lower fees to market participants rather than maximizing refunds to clearing members and dividend distributions to Stockholder Exchanges. OCC will review its fee schedule on a quarterly basis to manage revenue as closely to this target as possible.
The Capital Plan would allow OCC to refund approximately $40 million from 2014 fees to clearing members in 2015 and to reduce fees in an amount to be determined by the Board, effective in the second quarter 2015. OCC will announce new fee levels early in 2015 and will make them effective following notification to clearing members and any necessary approval by the Commission. OCC will endeavor to provide clearing members with no less than 60-day advance notice of the effectiveness of changes to fee levels, particularly those that result in increases to fee levels. No dividends will be declared until December 2015 and no dividends will be paid until 2016.
Changes to the Fee, Refund or Dividend Policies will require the affirmative vote of two-thirds of the directors then in office and approval of
Under the Fee Policy, in setting fees each year, OCC would calculate an annual revenue target based on a forward twelve months expense forecast divided by the difference between one and the Business Risk Buffer of 25%,
Under the proposed change, OCC would calculate its annual revenue target as follows:
Annual Revenue Target = Forward 12 Months Expense Forecast/(1–.25).
Because OCC's clearing fee schedules typically reflect different rates for different categories of transactions, fee projections would include projections as to relative volume in each such category. The clearing fee schedule would therefore be set to achieve a blended or average rate per contract sufficient, when multiplied by total projected contract volume, to achieve the Annual Revenue Target. Under extraordinary circumstances, OCC would then add any amount determined to be necessary for additional reserves or surplus and divide the resulting number by the projected contract volume to determine the applicable average fee per cleared contract needed to achieve the additional amounts required. Consistent with past practice, OCC would notify its clearing members of the fees it determines it would apply for any particular period by describing the change in an information memorandum distributed to all clearing members. Consistent with past practice, OCC would also notify regulators of the fees it determines it would apply for any particular period by filing an amendment to its Schedule of Fees as a proposed rule change for immediate effectiveness under Section 19(b)(3)(A) of the Act and Rule 19b–4(f)(2) thereunder.
Under the Refund Policy, except at a time when Replenishment Capital is outstanding as described below, OCC would declare a refund to Clearing Members in December of each year, beginning in 2015, in an amount equal to 50% of the excess, if any, of (i) pre-tax income for the year prior to the refund over (ii) the sum of (x) the amount of pre-tax income after the refund necessary to produce after-tax income sufficient to maintain shareholders' equity at the Target Capital Requirement for the following year plus (y) the amount of pre-tax income after the refund necessary to fund any additional reserves or additional surplus not already included in the Target Capital Requirement. Such refund will be paid in the year following the declaration after the issuance of OCC's audited financial statements, provided that (i) the payment does not result in total shareholders' equity falling below the Target Capital Requirement, and (ii) such payment is otherwise permitted by applicable Delaware law and applicable federal laws and regulations. OCC would not be able to pay a refund on a particular date unless dividends were paid on the same date. If Replenishment Capital has been contributed and remains outstanding, OCC would not pay refunds until such time as the Target Capital Requirement is restored through the accumulation of retained earnings. Refunds in accordance with the Refund Policy would resume once the Target Capital Requirement is restored and all Replenishment Capital is repaid in full, provided that the restoration of the Target Capital Requirement and the repayment of Replenishment Capital occurred within 24 months of the issuance date of the Replenishment Capital. If, within 24 months of the issuance date of any Replenishment Capital, such Replenishment Capital has not been repaid in full or shareholders' equity has not been restored to the Target Capital Requirement, OCC would no longer pay refunds to clearing members, even if the Target Capital Requirement is restored and all Replenishment Capital is repaid at a later date.
The Dividend Policy would provide that, except at a time when Replenishment Capital is outstanding as described below, OCC would declare a dividend on its Class B Common Stock in December of each year in an aggregate amount equal to the excess, if any, of (i) after-tax income for the year, after application of the Refund Policy (unless the Refund Policy has been eliminated, in which case the refunds shall be deemed to be $0) over (ii) the sum of (A) the amount required to be retained in order to maintain total shareholders' equity at the Target Capital Requirement for the following year, plus (B) the amount of any additional reserves or additional surplus not already included in the Target Capital Requirement. Such dividend will be paid in the year following the declaration after the issuance of OCC's audited financial statements, provided that (i) the payment does not result in total shareholders' equity falling below the Target Capital Requirement, and (ii) such payment is otherwise permitted by applicable Delaware law and applicable federal laws and regulations. If
OCC has always been operated on an “industry utility” model. The Stockholder Exchanges have heretofore contributed only minimal capital to OCC.
Given the very large increase in capital that OCC has determined to be appropriate in order to assure compliance with regulatory requirements and meet the increased responsibilities imposed upon it as a systemically important financial market utility, OCC has determined that the best alternative available to it is to obtain a substantial further capital contribution from the Stockholder Exchanges. This cannot be accomplished without modification of the past practice of not providing dividends to stockholders. Accordingly, it would be necessary for OCC to establish the new Fee Policy, Refund Policy, and Dividend Policy. Because of the Business Risk Buffer being set at 25%, the combination of the Fee, Refund and Dividend Policies will effectively cap the dividends to be paid to the Stockholder Exchanges at a level that the Board (with the advice of outside financial experts) has determined results in a reasonable rate of return on contributed capital, particularly in comparison to the implied cost of capital to the clearing members and their customers of instead pursuing an approach which required the accumulation of retained earnings through higher fees and no refunds for several years. OCC will continue to refund a significant percentage of excess clearing fees to clearing members, thereby benefiting both clearing members and their customers. The Capital Plan therefore effectively preserves OCC's industry utility model of providing its services in an efficient manner, but enhances the benefits to the end user customers by charging lower initial fees as a result of the decrease in the buffer margin from OCC's 10-year average of 31% to 25%.
Clearing members and customers will benefit from the proposed Capital Plan because it will allow OCC to continue to provide clearing services at low cost. As noted, OCC expects that this capital infusion from stockholders will enable OCC to provide a significant refund of 2014 fees. OCC further expects that its current clearing fees will be reduced significantly based on the Business Risk Buffer of 25% beginning in 2015 with refunds restored, and that these lower fees will continue for the foreseeable future.
Stockholder Exchanges will benefit from the dividend return they receive and, perhaps more importantly, they will be assured that OCC will be in a position to provide clearing services for their markets on an on-going basis within the same basic structure that has served these markets well since their inception and without the need to radically change the structure to address potential demands of outside equity investors. Non-Stockholder Exchanges will also benefit by continuing to receive OCC's clearing services for their products on the same basis as they presently do.
OCC also believes that the Capital Plan will better align the interests of Stockholder Exchanges and clearing members with respect to expenses, since changes to the level of operating expenses directly affect the Target Capital Requirement. In sum, OCC believes that the present proposal represents a fair and reasonable balancing of the interests of the Stockholder Exchanges, the other exchanges for which OCC provides clearing services, clearing members, customers, and the general public while providing an immediate infusion of capital and a structure within which OCC can meet its obligations to the public as a systemically important financial market utility, as well as the requirements under the SEC Proposed Rules.
OCC proposes to put in place a Replenishment Capital Plan whereby OCC's Stockholder Exchanges are obligated to provide on a
Replenishment Capital contributed to OCC under the Replenishment Capital Plan would take the form of a new class of common stock (“Class C Common Stock”) of OCC to be issued to the Stockholder Exchanges solely in exchange for Replenishment Capital contributions.
The Replenishment Capital Plan would be part of OCC's overall Capital Plan. In implementing the Replenishment Capital Plan, OCC's management would monitor OCC's levels of shareholders' equity to identify certain triggers, or reduced capital levels, that might require action. OCC has identified two key triggers—a soft trigger and a hard trigger—and proposes that OCC take certain steps upon the occurrence of either as described in more detail below.
The “soft trigger” for re-evaluating OCC's capital would occur if OCC's shareholders' equity falls below the sum of (i) the Baseline Capital Requirement and (ii) 75% of the Target Capital Buffer. The soft trigger would be a warning sign that OCC's capital had fallen to a level that required attention and responsive action to prevent it from falling to unacceptable levels. Upon a breach of the soft trigger, OCC's senior management and the Board would review alternatives to increasing capital, and take appropriate action as necessary, including increasing fees or decreasing expenses, to restore shareholders' equity to the Target Capital Requirement.
The “hard trigger” for making a mandatory Replenishment Capital call would occur if shareholders' equity falls below 125% of the Baseline Capital Requirement (“Hard Trigger Threshold”). The hard trigger would be a sign that corrective action more significant and with a more immediate impact than increasing fees or decreasing expenses should be taken to increase OCC's capital, either as part of a recovery plan or a wind-down plan for OCC's business. OCC's shareholders' equity would have to fall more than $100,000,000 below the fully funded capital amount described above in order for the Hard Trigger Threshold to be breached. As a result, OCC views the breach of the Hard Trigger Threshold as unlikely and occurring only as a result of a significant, unexpected event. Upon a breach of the Hard Trigger Threshold, the Board would have to determine whether to attempt a recovery, a wind-down of OCC's operations or a sale or similar transaction, subject in each case to any necessary stockholder consent.
While Replenishment Capital is outstanding, no refunds or dividends would be paid and, if any Replenishment Capital remains outstanding for more than 24 months or the Target Capital Requirement is not restored during that period, changes would be made to how OCC calculates refunds and dividends, as described in more detail above under Refund Policy and Dividend Policy. In addition, while Replenishment Capital is outstanding, OCC would first utilize the entire amount of Available Funds to repurchase, on a
The capital base described above will permit OCC to hold at all times cash and other assets of high quality and sufficiently liquid to allow OCC to meet its current and projected operating expenses under a range of scenarios, including adverse market conditions. In compliance with proposed Rule 17Ad–22(e)(15),
OCC believes that the Replenishment Capital Plan described above together with OCC's ability to set fees and retain earnings as described above will assure OCC's ability to remain at all times in compliance with the requirements of proposed Rule 17Ad–22(e)(15),
OCC believes that the proposed change is consistent with Section 805(b) of the Clearing Supervision Act
OCC believes that the proposed change will reduce OCC's overall level of risk because it will help ensure that OCC will be able to continue to provide its clearing services even if it suffers significant business losses. As described above, the proposed change includes a significant infusion of permanent capital. In addition, each feature of the Capital Plan would help ensure that OCC's capital is sufficient on an ongoing basis to allow it to withstand business losses, whether resulting from a decline in revenue or otherwise. The Fee Policy would provide for the Business Risk Buffer, which is designed to ensure that fees will be sufficient to cover projected operating expenses. The Refund Policy and Dividend Policy both would allow for refunds of fees or payment of dividends, respectively, only to the extent that they would allow OCC to maintain shareholders' equity at the Target Capital Requirement. They would also prohibit refunds and dividends when Class C Common Stock is outstanding under the Replenishment Capital Plan and OCC was in the process of rebuilding its capital base. In addition, the Replenishment Capital Plan would establish a mandatory mechanism for the contribution of additional capital by OCC's stockholder exchanges in the event capital fell below desired levels. Together these features of the Capital Plan help ensure that OCC maintains levels of capital sufficient to allow it to absorb substantial business losses and meet its increased responsibilities imposed upon it as a systemically important financial market utility, which in turn helps reduce OCC's overall level of risk.
The designated clearing agency may implement this change if it has not received an objection to the proposed change within 60 days of the later of (i) the date that the Commission receives the notice of proposed change, or (ii) the date the Commission receives any further information it requests for consideration of the notice. The designated clearing agency shall not implement this change if the Commission has an objection.
The Commission may, during the 60-day review period, extend the review period for an additional 60 days for proposed changes that raise novel or complex issues, subject to the Commission providing the designated clearing agency with prompt written notice of the extension. The designated clearing agency may implement a change in less than 60 days from the date of receipt of the notice of proposed change by the Commission, or the date the Commission receives any further information it requested, if the Commission notifies the designated clearing agency in writing that it does not object to the proposed change and authorizes the designated clearing agency to implement the change on an earlier date, subject to any conditions imposed by the Commission.
The designated clearing agency shall post notice on its Web site of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing. 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.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the rules of The NASDAQ Options Market (“NOM”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The text of the proposed rule change is below; proposed new language is italicized; proposed deletions are in brackets.
Sec. 1–19 No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt new Section 20, Exchange Sharing of Participant-Designated Risk Settings, in Chapter VI, Trading Systems, of the NOM Rules in order to authorize the Exchange to share any Participant-designated risk settings in Exchange's Trading System with the Clearing Participant that clears transactions on behalf of the Participant. Pursuant to Chapter II, Participation, Section 2, Requirements for Options Participation, of the NOM Rules, Options Participants must be Options Clearing Participants or establish a clearing arrangement with a Clearing Participant. Every Clearing Participant is responsible for the clearance of transactions involving an options contract that is effected on or through NOM or its facilities or systems (“NOM Transactions”) of each Options Participant that gives up such Clearing Participant's name pursuant to a letter of authorization, letter of guarantee or other authorization (“Letter of Guarantee”) given by such Clearing Participant to such Options Participant, which authorization must be submitted to Nasdaq.
Thus, while not all Participants are Clearing Participants, all Participants require a Clearing Participant's consent to clear transactions on their behalf in order to conduct business on the Exchange. Each Participant that transacts through a Clearing Participant on the Exchange executes a Letter of Guarantee which codifies the relationship between the Participant and the Clearing Participant and provides the Exchange with notice of which Clearing Participants have relationships with which Participants. The Clearing Member that guarantees the Participant's transactions on the Exchange has a financial interest in understanding the risk tolerance of the Participant. The proposal would provide the Exchange with authority to directly provide Clearing Participants with information that may otherwise be available to such Clearing Participants by virtue of their relationship with the respective Participants.
At this time, the risk settings covered by this proposal are set forth in Chapter VI, Trading Systems, Section 19, Risk Monitor Mechanism.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed rule change will allow the Exchange to directly provide a Participant's designated risk settings to the Clearing Participant that clears trades on behalf of the Participant. Because a Clearing Participant that executes a clearing Letter of Guarantee on behalf of a Participant guarantees all transactions of that Participant, and therefore bears the risk associated with those transactions, it is appropriate for the Clearing Participant to have knowledge of what risk settings the Participant may utilize within the Exchange's trading system. The proposal will permit Clearing
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues and does not pose an undue burden on non-Clearing Participants because, unlike Clearing Participants, non-Clearing Participants do not guarantee the execution of a Participant's transactions on the Exchange. The proposal is structured to offer the same enhancement to all Clearing Participants, regardless of size, and would not impose a competitive burden on any Participant. Any Participant that does not wish to share its designated risk settings with its Clearing Participant could avoid sharing such settings by becoming a Clearing Participant.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) [sic] 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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 (the “Act”),
The Exchange proposes to amend IM–3120–2 to Rule 3120 to extend the pilot program that eliminated the position limits for options on SPDR S&P 500 ETF
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend IM–3120–2 to Rule 3120 to extend the time period of the SPY Pilot Program,
This filing does not propose any substantive changes to the SPY Pilot Program. In proposing to extend the SPY Pilot Program, the Exchange reaffirms its consideration of several factors that supported the original proposal of the SPY Pilot Program, including (1) the availability of economically equivalent products and their respective position limits, (2) the liquidity of the option and the underlying security, (3) the market capitalization of the underlying security and the related index, (4) the reporting of large positions and requirements surrounding margin, and (5) the potential for market on close volatility.
In the original proposal to establish the SPY Pilot Program, the Exchange stated that if it were to propose an extension, permanent approval or termination of the program, the Exchange would submit, along with any filing proposing such amendments to the program, a report providing an analysis of the SPY Pilot Program covering the first twelve (12) months during which the SPY Pilot Program was in effect (the “Pilot Report”).
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act, in general, and Section 6(b)(5) of the Act, in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest. The Exchange believes that extending the SPY Pilot Program promotes just and equitable principles of trade by permitting market participants, including market makers, institutional investors and retail investors, to establish greater positions when pursuing their investment goals and needs.
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 change is not designed to address any aspect of competition, whether between the Exchange and its competitors, or among market participants. Instead, the proposed rule change is designed to allow the SPY Pilot Program to continue as other SROs have adopted similar provisions.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under 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 change 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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 12, 2014, BATS Exchange, Inc. (the “Exchange” or “BATS”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the Shares under BATS Rule 14.11(i), which governs the listing and trading of Managed Fund Shares on the Exchange. The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities.
The Shares will be offered by the iShares U.S. ETF Trust (the “Trust”), a Delaware statutory trust. The Trust is registered with the Commission as an open-end investment company and has filed a registration statement on behalf of the Fund on Form N–1A (“Registration Statement”) with the Commission.
The Exchange has made the following representations and statements regarding the Fund.
To achieve its objective, the Fund will invest, under normal circumstances,
After careful review, the Commission finds that the Exchange's proposal to list and trade the Shares is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission also finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Exchange Act,
According to the Exchange, intraday, executable price quotations on assets held by the Fund are available from major broker-dealer firms, and for exchange-traded assets, such intraday information is available directly from the applicable listing exchange.
On each business day, before commencement of trading in Shares during Regular Trading Hours on the Exchange, the Fund will disclose on its Web site the identities and quantities of the portfolio of securities and other assets (the “Disclosed Portfolio”) held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the business day.
The Commission also 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 per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
In support of this proposal, the Exchange has made the following representations:
(1) The Shares will be subject to BATS Rule 14.11(i), which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) Trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Managed Fund Shares, and that these procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws.
(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) BATS Rule 3.7, which imposes suitability obligations on Exchange 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-Opening
(5) For initial and/or continued listing, the Fund must be in compliance with Rule 10A–3 under the Act.
(6) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), as deemed illiquid by the Adviser under the 1940 Act.
(7) The Fund's exposure to reverse repurchase agreements will be covered by liquid assets having a value equal to or greater than such commitments.
(8) Structured securities, when combined with those instruments held as part of the Other Investments described above, will not exceed 20% of the Fund's net assets.
(9) As it relates to exchange traded investment companies, the Fund will only invest in investment companies that trade on markets that are a member of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
(10) To the extent that the Fund invests in futures contracts, the Fund will only invest in futures contracts that are traded on an exchange that is a member of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
(11) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice. For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Exchange Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to add new Rule 1016 to authorize the Exchange to share any Phlx XL participant-designated risk settings in Phlx XL, the Exchange's trading system, with the clearing member that clears transactions on behalf of the Phlx XL participant.
The text of the proposed rule change is below; proposed new language is italicized; proposed deletions are in brackets.
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 proposed to adopt new Rule 1016 to authorize the Exchange to share any Phlx XL participant-designated risk settings in Exchange's trading system with the clearing member that clears transactions on behalf of the Phlx XL participant. For purposes of Rule 1016, a Phlx XL participant is any specialist, streaming quote trader (“SQT”) or remote streaming quote trader (“RSQT”).
Phlx XL participants are required to be members of the Exchange.
While not all Phlx XL participants are clearing members, all Phlx XL participants require a clearing member's consent to clear transactions on their behalf in order to conduct business on the Exchange. Each Phlx XL participant that transacts through a clearing member on the exchange executes a Letter of Guarantee which codifies the relationship between each Phlx XL participant and clearing member and provides the Exchange with notice of which clearing members have relationships with which Phlx XL participants. The clearing member that guarantees the Phlx XL participant's transactions on the Exchange has a financial interest in understanding the risk tolerance of the Phlx XL participant. The proposal would provide the Exchange with authority to directly provide clearing members with information that may otherwise be available to such clearing members by virtue of their relationship with the respective Phlx XL participants.
At this time, the risk settings covered by this proposal are set forth in Rule 1093, Phlx XL Risk Monitor Mechanism.
Phlx believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The proposed rule change will allow the Exchange to directly provide a Phlx XL participant's designated risk settings to the clearing member that clears trades on behalf of the Phlx XL participant. Because a clearing member that executes a clearing Letter of Guarantee on behalf of a Phlx XL participant guarantees all transactions of that Phlx XL participant, and therefore bears the risk associated with those transactions, it is appropriate for the clearing member to have knowledge of what risk settings the Phlx XL participant may utilize within the Exchange's trading system. The proposal will permit clearing members who have a financial interest in the risk settings of Phlx XL participants with whom the clearing member has entered into a clearing Letter of Guarantee to better monitor and manage the potential risks assumed by clearing members, thereby providing clearing members with greater control and flexibility over setting their own risk tolerance and exposure and aiding clearing members in complying with the Act. To the extent a clearing member might reasonably require a Phlx XL participant to provide access to its risk settings as a prerequisite to continuing to clear trades on the Phlx XL participant's behalf, the Exchange's
Phlx does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed rule change is not designed to address any competitive issues and does not pose an undue burden on non-clearing members because, unlike clearing members, non-clearing members do not guarantee the execution of a Phlx XL participant's transactions on the Exchange. The proposal is structured to offer the same enhancement to all clearing members, regardless of size, and would not impose a competitive burden on any participant. Any Phlx XL participant that does not wish to share its designated risk settings with its clearing member could avoid sharing such settings by becoming a clearing member of OCC.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) [sic] 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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 (“Act”)
The purpose of the proposed rule change is to adopt rules that will provide the basis for ICC to clear additional credit default swap contracts. Specifically, ICC is proposing to amend Subchapter 26D of its rules to provide for the clearance of additional Standard Emerging Market Sovereign CDS contracts (collectively, “SES Contracts”).
ICC has been approved to clear eight SES Contracts: The Federative Republic of Brazil, the United Mexican States, the Bolivarian Republic of Venezuela, the Argentine Republic, the Republic of Turkey, the Russian Federation, the Republic of Hungary, and the Republic of South Africa. The proposed change to the ICC Rules would provide for the clearance of additional SES Contracts, specifically the Republic of Chile, the Republic of Peru, the Republic of
In its filing with the Commission, ICC 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. ICC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of these statements.
The purpose of the proposed rule change is to adopt rules that will provide the basis for ICC to clear additional credit default swap contracts. ICC has been approved to clear eight SES Contracts: The Federative Republic of Brazil, the United Mexican States, the Bolivarian Republic of Venezuela, the Argentine Republic, the Republic of Turkey, the Russian Federation, the Republic of Hungary, and the Republic of South Africa. ICC proposes amending Subchapter 26D of its Rules to provide for the clearance of additional SES Contracts, specifically the Republic of Chile, the Republic of Peru, the Republic of Colombia, Ukraine, and the Republic of Poland. These additional SES Contracts will be offered on the 2014 ISDA Credit Derivatives Definitions. The addition of these SES Contracts will benefit the market for emerging market credit default swaps by providing market participants the benefits of clearing, including reduction in counterparty risk and safeguarding of margin assets pursuant to clearing house rules. Clearing of the additional SES Contracts will not require any changes to ICC's Risk Management Framework or other policies and procedures constituting rules within the meaning of the Securities Exchange Act of 1934 (“Act”).
These additional SES Contracts have terms consistent with the other SES Contracts approved for clearing at ICC and governed by Subchapter 26D of the ICC rules, namely the Federative Republic of Brazil, the United Mexican States, the Bolivarian Republic of Venezuela, the Argentine Republic, the Republic of Turkey, the Russian Federation, the Republic of Hungary, and the Republic of South Africa. Minor revisions to Subchapter 26D (Standard Emerging Market Sovereign (“SES”) Single Name) are made to provide for clearing the additional SES Contracts and described as follows.
Rule 26D–102 is modified to include the Republic of Chile, the Republic of Peru, the Republic of Colombia, Ukraine, and the Republic of Poland in the list of specific Eligible SES Reference Entities to be cleared by ICC.
Section 17A(b)(3)(F) of the Act
Clearing of the additional SES Contracts will also satisfy the requirements of Rule 17Ad–22.
The additional SES Contracts will be available to all ICC Participants for clearing. The clearing of these additional SES Contracts by ICC does not preclude the offering of the additional SES Contracts for clearing by other market participants. Accordingly, ICC does not believe that clearance of the additional SES Contracts will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed rule change have not been solicited or received. ICC will notify the Commission of any written comments received by ICC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• 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–ICC–2015–003 and should be submitted on or before March 2, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting the information collection requests (ICRs) below for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than April 10, 2015.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590, or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number ____ .” Alternatively, comments may be transmitted via facsimile to (202) 493–6216 or (202) 493–6497, or via email to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS–21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493–6292) or Ms. Kimberly Toone, Office of Information Technology, RAD–20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493–6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501–3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below is a brief summary of currently approved information collection activities that FRA will submit for clearance by OMB as required under the PRA:
Reporting Burden:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501–3520.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Request for comments on technical report.
This notice announces NHTSA's publication of a technical report estimating the lives saved in 2012 and also cumulatively from 1960 through 2012 by vehicle safety technologies in passenger cars and LTVs. The report's title is:
Comments must be received no later than June 9, 2015.
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• You may call Docket Management at 1–800–647–5527.
John Kindelberger, Chief, Evaluation Division, NVS–431, National Center for Statistics and Analysis, National Highway Traffic Safety Administration, Room W53–312, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202–366–4696. Email:
NHTSA began in 1975 to evaluate the effectiveness of vehicle safety technologies associated with the Federal Motor Vehicle Safety Standards. By June 2014, NHTSA had evaluated the effectiveness of virtually all the life-saving technologies introduced in passenger cars, pickup trucks, SUVs, and vans from about 1960 up through about 2010. A statistical model estimates the number of lives saved from 1960 to 2012 by the combination of these life-saving technologies. Fatality Analysis Reporting System (FARS) data for 1975 to 2012 documents the actual crash fatalities in vehicles
A previous NHTSA study (70 FR 3975) using the same methods estimated that vehicle safety technologies had saved 328,551 lives from 1960 through 2002. The agency now estimates 613,501 lives saved from 1960 through 2012. The annual number of lives saved grew from 115 in 1960, when a small number of people used lap belts, to 27,621 in 2012, when most cars and LTVs were equipped with numerous modern safety technologies and belt use on the road achieved 86 percent.
NHTSA welcomes public review of the technical report. NHTSA will submit to the Docket a response to the comments and, if appropriate, will supplement or revise the report.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the Docket number of this document (NHTSA–2014–0109) in your comments.
Your primary comments must not be more than 15 pages long (49 CFR 553.21). However, you may attach additional documents to your primary comments. There is no limit on the length of the attachments.
Please submit one copy of your comments, including the attachments, to Docket Management at the address given above under
Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at
Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. You may also periodically access
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590. In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under
In our response, we will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
(1) Go to the Federal Docket Management System (FDMS) at
(2) FDMS provides two basic methods of searching to retrieve dockets and docket materials that are available in the system: (a) “Quick Search” to search using a full-text search engine, or (b) “Advanced Search,” which displays various indexed fields such as the docket name, docket identification number, phase of the action, initiating office, date of issuance, document title, document identification number, type of document,
(3) You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.
Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
49 U.S.C. 30111, 30181–83 delegation of authority at 49 CFR 1.95 and 501.8.
Departmental Offices, U.S. Department of the Treasury.
Notice and request for comment.
Section 107 of the Terrorism Risk Insurance Program Reauthorization Act of 2015 (Reauthorization Act) requires the Secretary of the Treasury (Secretary) to conduct a study on the certification process in the Terrorism Risk Insurance Act of 2002, as amended (TRIA). The Secretary also must submit a report on the results of its study to Congress. To assist the Secretary in conducting the study and formulating the report, the Federal Insurance Office (FIO) is issuing this request for comment.
Comments must be submitted not later than March 6, 2015.
Interested persons may submit comments electronically through the Federal eRulemaking Portal at
Electronic submissions are encouraged.
Comments may also be mailed to the Department of the Treasury, Federal Insurance Office, MT 1410, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
Brett D. Hewitt, Policy Advisor, Federal Insurance Office, Room 1410, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, at (202) 622–5892 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877–8339.
Section 107(b) of the Reauthorization Act (Pub. L. 114–1) requires the Secretary to conduct a study on the process by which the Secretary determines whether to certify an act as an “act of terrorism” under section 102(1) of TRIA (“Certification Study”). Section 107(c) of the Reauthorization Act prescribes certain factors that the Certification Study must examine. After completing the Certification Study, the Department of the Treasury (Treasury) must submit a report on its results to Congress.
A. Collecting information and views on the factors that must be analyzed in the Certification Study will enhance the accuracy and value of the study and report to Congress. Accordingly, comments are sought on:
1. The establishment of a reasonable timeline by which the Secretary must make an accurate determination on whether to certify an act as an act of terrorism;
2. The impact that the length of any timeline proposed to be established may have on the insurance industry, policyholders, consumers, and taxpayers as a whole;
3. The factors the Secretary would evaluate and monitor during the certification process, including the ability of the Secretary to obtain the required information regarding the amount of projected and incurred losses resulting from an act which the Secretary would need in determining whether to certify the act as an act of terrorism;
4. The appropriateness, efficiency, and effectiveness of the consultation process required under section 102(1)(A) of TRIA and any recommendations on changes to the consultation process; and
5. The ability of the Secretary to provide guidance and updates to the public regarding any act that may reasonably be certified as an act of terrorism.
B. In addressing the considerations set forth in section 107(c) of the Reauthorization Act (as described in Paragraph (II)(A) of this notice), commenters are invited to submit views on:
1. The manner and extent to which the certification timeline and the Secretary's ability to make an accurate determination on whether to certify an act as an act of terrorism may be influenced by domestic or international law enforcement processes; and
2. The implications for insurers or policyholders if one or more events are certified as acts of terrorism but the aggregate, calendar-year insured losses do not exceed the amount required for Treasury to make payments for insured losses.
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 qualified separate lines of business.
Written comments should be received on or before April 10, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of regulations should be directed to Allan Hopkins, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
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 Notice 99–43, Nonrecognition Exchanges under Section 897.
Written comments should be received on or before April 10, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Allan Hopkins, 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.
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 8850, Pre-Screening Notice and Certification Request for the Work Opportunity and Welfare-to-Work Credits.
Written comments should be received on or before April 10, 2015 to be assured of consideration.
Direct all written comments to Christie A. Preston, 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.
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 6118, Claim for Refund of Income Tax Return Preparer Penalties.
Written comments should be received on or before April 10, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, 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 Allan Hopkins at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
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 8621–A, Return by a Shareholder Making Certain Late Elections To End Treatment as a Passive Foreign Investment Company.
Written comments should be received on or before April 10, 2015 to be assured of consideration.
Direct all written comments to Christie Preston, 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 Allan Hopkins, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Joint Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, February 25, 2015.
Lisa Billups at 1–888–912–1227 or (214) 413–6523.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Joint Committee will be held Wednesday, February 25, 2015, at 1:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. For more information please contact Ms. Billups at 1–888–912–1227 or 214–413–6523, or write TAP Office 1114 Commerce Street, Dallas, TX 75242–1021, or post comments to the Web site:
The agenda will include various committee issues for submission to the IRS and other TAP related topics. Public input is welcomed.
The Department of Veterans Affairs (VA) gives notice under the Federal
The agenda will include a report from the Journal of Rehabilitation Research and Development sub-committee and comments from the VA Secretary.
No time will be allocated at this meeting for receiving oral presentations from the public. Members of the public wanting to attend, or needing further information may contact Ms. Pauline Cilladi-Rehrer, Designated Federal Officer, Office of Research and Development (10P9), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 443–5607, or by email at
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and announcement of public meeting.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, sets forth various provisions designed to improve energy efficiency for consumer products and certain commercial and industrial equipment. In addition to specifying a list of covered residential products and commercial equipment, EPCA contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. The U.S. Department of Energy (DOE) has previously published a proposed determination of coverage to classify gas-fired hearth products as covered consumer products under the applicable provisions in EPCA. In this document, DOE proposes an energy conservation standard for hearth products following its notice of proposed coverage determination. This proposed rule also announces a public meeting to receive comment on the proposed standard and associated analyses and results.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E–089, 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586–2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards at the phone number above to initiate the necessary procedures. Please also note that any person wishing to bring a laptop computer or tablet into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing laptops, or allow an extra 45 minutes. Persons may also attend the public meeting via webinar. For more information, refer to section VII, “Public Participation,” near the end of this notice.
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Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section VII of this document (Public Participation).
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW., Washington, DC, 20585–0121. Telephone: (202) 287–1692. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC–71, 1000 Independence Avenue SW., Washington, DC 20585–0121. Telephone: (202) 5869507. Email:
For information on how to submit or review public comments, contact Ms. Brenda Edwards at (202) 586–2945 or by email:
Title III, Part B
Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B)) The statute also provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards. (42 U.S.C. 6295(m)(1))
In accordance with these and other statutory provisions discussed in this notice, DOE proposes a new energy conservation standard for hearth products. The proposed standard is a prescriptive design requirement for standby mode operation that would disallow the use of continuously-burning pilots (
Table I.1 presents DOE's evaluation of the economic impacts of the proposed standard on consumers of hearth products, as measured by the average life-cycle cost (LCC) savings and the simple payback period (PBP).
The industry net present value (INPV) is the sum of the discounted cash flows for the industry from the base year through the end of the analysis period (2014 to 2050). Using a real discount rate of 8.7 percent, DOE estimates that the base case INPV for manufacturers of gas hearth products is $125.3 million in 2013$.
DOE's analyses indicate that the proposed energy conservation standard for hearth products would save a significant amount of energy in the form of reduced natural gas consumption during stand-by mode. The lifetime energy savings for hearth products purchased in the 30-year period that begins in the first full year of compliance with an amended standard (2021–2050), relative to the base case without amended standards, amount to 0.69 quads
The cumulative net present value (NPV) of total consumer costs and savings for the proposed hearth products standard ranges from $1.03 billion to $3.12 billion at 7-percent and 3-percent discount rates, respectively. This NPV expresses the estimated total value of future operating-cost savings minus the estimated increased product costs for hearth products purchased in 2021–2050.
In addition, the proposed hearth products standard would have significant environmental benefits. The energy savings described above are expected to result in cumulative emission reductions of 37.0 million metric tons (Mt)
The value of the CO
Table 1.2 summarizes the national economic benefits and costs expected to result from the proposed standard for hearth products.
The benefits and costs of today's proposed energy conservation standard, for hearth products sold in 2021–2050, can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value of the benefits from consumer operation of products that meet the proposed new or amended standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase and installation costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO
Although combining the values of operating savings and CO
Estimates of annualized benefits and costs of the proposed standard are shown in Table I.3. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
DOE has tentatively concluded that the proposed standard represents the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in significant conservation of energy. DOE further notes that products achieving the proposed standard are already commercially available. Based on the analyses described previously, DOE has tentatively concluded that the benefits of the proposed standards to the Nation (energy savings, positive NPV of consumer benefits, consumer LCC savings, and emission reductions) would outweigh the burdens (loss of INPV for manufacturers and LCC increases for some consumers).
Based on consideration of the public comments DOE receives in response to this notice and related information collected and analyzed during the course of this rulemaking, DOE may adopt the standard proposed in this notice, or some combination of options that incorporate the proposed standard in part.
The following section briefly discusses the statutory authority underlying today's proposal, as well as some of the relevant historical background related to the establishment of standards for hearth products.
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (42 U.S.C. 6291–6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program designed to improve energy efficiency for consumer products and certain commercial and industrial equipment. In addition to specifying a list of covered residential products and commercial equipment, EPCA, as amended, contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) Specifically, for a given product to be classified as a covered product, the Secretary must determine that:
(A) Classifying the product as a covered product is necessary or appropriate for the purposes of carrying out EPCA; and
(B) The average annual per-household energy use by products of such type is
For the Secretary to prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p) for covered products added pursuant to 42 U.S.C. 6292(a)(20) and (b)(1), the Secretary must also determine that:
(A) The average household energy use of the type (or class) of products has exceeded 150 kWh (or its Btu equivalent) per household for any 12-month period;
(B) The aggregate 12-month household energy use of the type (or class) of products has exceeded 4.2 TWh;
(C) Substantial improvement in energy efficiency is technologically feasible; and
(D) Application of a labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) that achieve the maximum energy efficiency that is technologically feasible and economically justified.
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) establishing Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program.
DOE must follow specific statutory criteria for prescribing standards for covered products, including hearth products. As indicated previously, 42 U.S.C. 6295(o) and (p) contain specific criteria for establishing or amending energy conservation standards for covered products. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including hearth products, if no test procedure has been established for the product,
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII))
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)–(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).
In addition, pursuant to other amendments contained in EISA 2007, any final rule for new or amended
Finally, it is noted that under 42 U.S.C. 6295(m), the agency must periodically review established energy conservation standards for a covered product. Under this requirement, such review must be conducted no later than 6 years from the issuance of any final rule establishing or amending a standard for a covered product.
DOE has not previously conducted an energy conservation standards rulemaking for hearth products. Consequently, there are currently no Federal energy conservation standards for hearth products.
On December 31, 2013, DOE published a notice of proposed determination (NOPD) of coverage to classify hearth products as covered products under EPCA. 78 FR 79638. In the proposed determination of coverage, DOE presented its preliminary findings relating to the energy use of hearth products to determine whether they could be classified as a type of covered product under the requirements of 42 U.S.C. 6292(b)(1)(A) and (B), and whether they would meet the criteria for DOE to prescribe an energy conservation standard under 42 U.S.C. 6295(l)(1)(A)–(D). (See section II.A for a discussion of these statutory criteria.) DOE also proposed to define a “hearth product” as “a gas-fired appliance that simulates a solid-fueled fireplace or presents a flame pattern (for aesthetics or other purpose) and that may provide space heating directly to the space in which it is installed.” 78 FR 79638, 79640 (Dec. 31, 2013). The proposed determination is still pending, but as discussed in section IV.A, DOE is using the proposed definition to delineate the scope of this NOPR. In addition, DOE has considered some of the comments submitted in response to the proposed coverage determination, which are relevant to the development of proposed energy conservation standards for hearth products and addresses those comments as applicable in this NOPR.
In the December 2013 NOPD, DOE proposed to adopt a definition of hearth product that means a gas-fired appliance that simulates a solid-fueled fireplace or presents a flame pattern (for aesthetics or other purpose) and that may provide space heating directly to the space in which it is installed.
Based upon the scope arising from this proposed definition and after making the necessary energy use calculations, DOE tentatively determined that hearth products would meet the relevant statutory criteria so as to justify coverage as a consumer product under EPCA, and provided the relevant justifications in the notice. 78 FR 79638, 79640–41 (Dec. 31, 2013). In the December 2013 NOPD, DOE provided examples of several common hearth product types that would be covered under the proposed definition, including vented decorative hearth products, vented heater hearth products, vented gas logs, gas stoves, outdoor hearth products, and vent-less hearth products.
DOE used the definition proposed in the December 2013 NOPD (as stated above) to determine the scope of this NOPR.
In setting forth new energy conservation standards for any type of covered product, EPCA requires DOE to determine that: (1) The product consumes more than 150 kilowatt-hours (or its Btu equivalent) per household in any 12 month period occurring before such a determination; (2) the aggregate energy use within the United States was more than 4,200,000,000 kilowatt-hours (kWh) (or its Btu equivalent) in any 12 month period occurring before such a determination; (3) substantial improvement in energy efficiency for the products is technologically feasible; and (4) the application of labeling is not likely to be sufficient for manufacturers to produce or for consumers to purchase products that would achieve the maximum energy efficiency which is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1)(A)–(D))
With regards to the first and second criteria, DOE has estimated the average household consumption to be 7.5 million Btu (equal to 2,198 kWh), and aggregate national energy use to be 95 trillion Btu (equal to 27,800,000,000 kWh) for currently-installed hearth products. (Details on these calculations can be found in chapter 7 of the NOPR TSD.) With regard to the third criterion, DOE found that several technologies are available to substantially improve the energy efficiency (or reduce the overall energy consumption) of hearth products in standby-mode. These technologies are discussed in section IV.C.2. Finally, with regard to the last criterion, DOE found through product literature review and manufacturer interviews that labeling is already often included in manuals that suggest users extinguish the pilot light when the product is not in use. However, for products such as those that include a millivolt gas valve, the user must allow the standing pilot to remain on so that the valve can be activated or deactivated by a thermostat or remote control. Further, regardless of instructions in the manual, DOE understands that a significant percentage of consumers allow the standing pilot light to burn year-round. DOE has, therefore, tentatively determined that the application of labeling is not sufficient to result in the maximum energy savings that would be technologically feasible and economically justified (
The purpose of this NOPR is to propose energy conservation standards for products that, together with the December 2013 proposed coverage determination, would establish coverage and energy conservation standards for hearth products. DOE has not previously conducted an energy conservation standards rulemaking for hearth products. If, after public comment, DOE issues a final determination of coverage for this type of product, DOE would consider adoption of the energy conservation standards for hearth products proposed in this NOPR.
DOE received several comments in response to the December 2013 NOPD that pertained to the definition and broad range of hearth product types. DOE notes that in general, these comments pertain to the determination of coverage process, not the energy conservation standards process, and so DOE will respond in full to these comments as part of the determination of coverage process. However, DOE acknowledges that certain comments on the December 2013 NOPD do have relevance for this NOPR and addresses them below and in section III.C in relevant part.
Multiple commenters in response to the December 2013 NOPD stated that the proposed definition for “hearth product” is too broad, and that a
DOE seeks additional comment regarding its proposed definition for hearth products found in the December 2013 NOPD and this is identified as Issue 1 in section VII.E “Issues on Which DOE Seeks Comment.”
As discussed previously, this NOPR proposes to adopt a prescriptive design requirement that would reduce hearth product energy consumption in standby mode. This design requirement would not affect energy consumption or efficiency in active mode. EPCA defines “active mode” energy consumption as the condition in which an appliance is connected to a main power source, has been activated, and provides one or more main functions. (42 U.S.C. 6295(gg)(1)(A)(i)) DOE notes that when the main burner of a hearth product is off, the product can no longer be considered in active mode. EPCA defines “off mode” as the condition in which the product is connected to its main power source and is not providing any standby or active mode function. (42 U.S.C. 6295(gg)(1)(A)(ii)) DOE has tentatively concluded that this occurs for hearth products when the main burner is not lit and, for models with continuously-burning pilots, when the pilot light is not lit.
EPCA defines “standby mode” energy consumption as the condition in which an appliance is connected to a main power source (in this case natural gas or propane connection) and facilitates the activation of other modes (including active mode) by remote switch, internal sensor, or timer, or serves other continuous functions. (42 U.S.C. 6295(gg)(1)(A)(iii)) DOE notes that the standing pilot may serve several continuous functions. The continuous pilot may provide a safety function by proving gas is lit before opening the valve for the main burner. In the case of an unvented hearth product, the standing pilot provides a means for ensuring that oxygen levels in the room remain at a safe level through incorporation of an oxygen depletion sensor. In the case of a millivolt gas valve, a standing pilot facilitates activation of active mode using a remote control; this is accomplished by the pilot light heating a thermopile, which produces a voltage difference, thereby allowing use with electronic controls. Therefore, DOE has concluded that the standing pilot qualifies as standby mode energy use.
DOE estimated the average annual amount of energy consumed by the main burner and by the standing pilot for each hearth product group.
As shown in Table III.1, the standing pilot energy consumption makes up a significant portion of the overall energy consumption for hearth products. Further, the energy savings that can be achieved through disallowing standing pilot lights is greater than the savings that could be achieved through increasing the active mode efficiency via a performance standard. An active mode performance standard would only partially reduce the active mode energy consumption, whereas a prescriptive requirement to remove the standing pilot could be applied to all hearth product types and would reduce the standing pilot energy consumption to zero.
DOE also considered whether a maximum energy use performance standard would be appropriate for hearth products in active mode. DOE recognizes that hearth products are available for a wide range of input capacities depending on the consumer's needs. In general, the gas input is proportional to the size of the hearth product. A performance standard for hearth products that establishes a maximum energy use would likely eliminate certain sizes of hearth products from the market and could negatively impact the utility of the product.
DOE considered several individual technologies that could potentially reduce the energy consumption of hearth products as discussed in section IV.A.3. All of the technology options identified, except for the electronic ignition, pertain to active mode energy use. Based on manufacturer feedback, DOE tentatively concluded that five of the technologies considered (air-to-fuel ratio, burner port design, simulated log design, burner pan media or bead type, and reflective combustion zone surfaces) would result in immeasurable
DOE has tentatively determined that all standby fossil fuel consumption would be eliminated by disallowing the use of standing pilots.
The standby mode operation and energy use of hearth products are functions of ignition type. Ignition types for all hearth products fall under three categories: (1) Match-lit; (2), constant-burning or “standing” pilot; and (3) electronic ignition. For match-lit ignition systems, in order to ignite the burner, the user must manually turn on the gas flow and light the main burner with a match, lighter, or other device. After use, the user should manually turn off the gas valve, thereby reducing the fuel flow to zero when the product is not in operation. Therefore, match-lit products do not consume energy when not in active mode. For products with electronic ignitions, the most common approach is an intermittent pilot ignition. In this system, upon a call for the burner to ignite (either from the user or a thermostat), a spark lights a pilot, which in turn ignites the main burner. When the main burner shuts off, the pilot also shuts off, and, thus, any energy use in standby mode is electrical. DOE has tentatively determined this electrical consumption is
Therefore, while an energy efficiency performance standard for active mode and the technology options to achieve efficiency improvements could result in only a fractional reduction of energy consumption for a subset of hearth products, disallowing the standing pilot ignition type would eliminate all standby fossil fuel use for hearth products. Of the three general ignition types for hearth products—match-lit, standing pilot, and electronic ignition—only the standing pilot ignition systems contribute substantially to standby mode energy, so disallowing their use would effectively eliminate standby mode energy consumption of hearth products.
DOE also considered performance standards for standby mode. Since the standing pilot light is used for several functions, reducing the allowable use during standby mode would hinder these products from providing these functions. (Note: Electronic ignitions are capable of providing the same functions as standing pilot ignition systems, and so disallowing standing pilots will not eliminate this utility from the market.) DOE is also unaware, as stated in section IV.A.3, of technologies for substantially reducing the consumption of pilot lights. Additionally, DOE has determined that a design requirement would be more effective and easier to implement than a performance standard addressing standby mode. A performance standard would likely also require a test procedure to be established and would increase manufacturer burden due to testing requirements.
In summary, DOE has tentatively concluded the following:
(1) A potential maximum energy use performance standard for active mode would likely restrict the sizes of available hearth products, eliminating part of the market.
(2) The technology options available for reducing the active mode energy consumption of hearth products either result in immeasurable or negligible energy savings, or only apply to a subset of hearth products resulting in limited opportunity for energy savings;
(3) A prescriptive requirement that disallows the use of standing pilot ignition systems would eliminate all standby mode fossil fuel use,
(4) An performance standard for standby mode would be less effective than a prescriptive requirement disallowing standing pilot ignitions, and would result in more manufacturer burden due to testing requirements; and
(5) There are no technology options available to substantially reduce the energy consumption of pilot lights other than removing them; and
(6) There is no associated public health or safety issue associated with replacing any constant-burning pilot with an intermittent pilot ignition system for the hearth products identified in this proposal. (DOE also requests comment on this assumption and this is identified as Issue 2 in section VII.E “Issues on Which DOE Seeks Comment.”)
For the reasons cited above, DOE has focused the analysis for this NOPR on a prescriptive requirement for standby mode energy use that would disallow the use of a constant-burning pilot light. DOE recognizes that an equivalent performance standard and test procedure could be proposed such that would measure the standby mode gas consumption and ensure it is zero. However, such a standard and accompanying test procedure would be unduly burdensome, since confirming that a hearth product does not have the components necessary for a standing pilot light ensures that there is no standby mode gas consumption.
In evaluating and establishing energy conservation standards, DOE generally divides covered products into classes by the type of energy used or by capacity or other performance-related feature that justifies a different standard for products having such feature. (See 42 U.S.C. 6295(q)) In deciding whether a feature justifies a different standard, DOE must consider factors such as the utility of the feature to users.
According to the proposed definition of “hearth product” in the December 2013 NOPD, a hearth product is a gas-fired appliance that simulates a solid-fueled fireplace or presents a flame pattern. 78 FR 79638, 79640 (Dec. 31, 2013). In the proposed definition, DOE
DOE also received several comments that suggested an efficiency metric is unachievable or disadvantageous for decorative products or gas log sets. (HPBA, No. 5 at p. 9; American Gas Association (AGA), No. 6 at p. 2; RH Peterson, No. 8 at p. 3; Rasmussen, No. 9 at p. 2; Wolf Steel, No. 4 at p. 1; AHRI, No. 15 at p. 3–4) Wolf Steel also suggested labeling requirements that would clearly identify decorative and heater products. (Wolf Steel, No. 4 at p.4)
In addition to the December 2013 NOPD comments, DOE also examined current product offerings and product literature, performed teardown analyses (described in section IV.C.3.a), and conducted manufacturer interviews in an effort to better understand the market and feature sets unique to various hearth products to determine whether capacity or performance-related features would justify different standards. Based on this analysis, DOE has tentatively concluded the following and seeks comment (Issue 3 in section VII.E) regarding these conclusions:
(1) Within the hearth industry, there is no universally accepted definition or set of defining features or other physical characteristics for what constitutes different categories of hearth products. The distinction between products is sometimes, though not always, defined by whether the product is vented or unvented. However, even within these groupings, the same product is sometimes certified to multiple ANSI standards and in other cases apparently are certified to different ANSI standards. For example, unvented gas log sets are sometimes certified to the ANSI Z21.60 decorative gas-fired appliance standard
(2) Hearth products encompass a wide range of configurations to serve size, space, and other constraints. Fireplaces, freestanding stoves, and gas log sets vary widely in their physical characteristics, as well as input capacities.
(3) Gas log sets are installed in existing fireboxes and masonry fireplaces. Therefore, the manufacturer of a gas log set has virtually no control over an array of factors that would affect the efficiency of their product, including the firebox size, shape, material, and in the case of vented gas logs, the amount of draft.
DOE acknowledges that these issues represent challenges in establishing product classes (because differentiating between different types is often difficult due to the similarities of different types of hearths) or in developing an efficiency metric that would apply for all hearth products.
In comments in response to the December 2013 NOPD, HPBA stated “under EPCA, a `covered product' is a type of product defined by a common functional utility and for which a common efficiency descriptor can be applied.” HPBA further stated: “the premise that a `covered product' must be defined by a common functional utility is the only premise that makes sense in EPCA's context, because the `efficiency' of a product can be determined only by reference to its function.” (HPBA, No. 5 at p. 7)
While DOE considered product classes in light of the issues presented above, these considerations pertain to the active mode operation of hearth products. As discussed in section III.B, DOE has tentatively concluded that a prescriptive requirement for standby mode (
In summary, when DOE analyzed the hearth market to consider whether to establish product classes based on standby mode energy consumption, it found that there is a substantial similarity among hearth products of all types, in that the primary mechanism of energy consumption in standby mode is a constant-burning pilot. Therefore, DOE has tentatively concluded that the establishment of product classes is not necessary for the energy conservation standards proposed by this NOPR.
In this NOPR, DOE is proposing to adopt a prescriptive design requirement for hearth products. Specifically, DOE is proposing to disallow the use of a continuously-burning pilot light in these products. DOE typically establishes test procedures by which products must be tested in order to certify compliance with an energy conservation standard. Because this proposed standard is a design requirement and not a performance standard (
EPCA states, in relevant part, that an amended or new standard may not be adopted if a test procedure has not been established for the relevant product type or class. (42 U.S.C. 6295(o)(3)(A)) However, later sections of EPCA acknowledge that DOE may establish prescriptive design requirements that by nature would not require a test procedure. For determining compliance with standards, EPCA requires use of the test procedures and criteria prescribed in 42 U.S.C. 6293, except for design standards. (42 U.S.C. 6295(s)) EPCA also states that a test procedure need not be prescribed if one cannot be designed to reasonably measure energy efficiency, energy use, water use, or annual operating cost, and not be unduly burdensome to conduct. (42 U.S.C. 6293(d)(1)) EPCA requires that a determination be published in the
DOE contends that any test procedure to determine whether a hearth product has a continuously-burning pilot would be unduly burdensome to conduct in light of fact that the proposed standard is in the form of a prescriptive design requirement. While a test could be
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency or reducing energy use are technologically feasible. DOE considers technologies incorporated in commercially-available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i).
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii)–(iv). Additionally, it is DOE policy not to include in its analysis any proprietary technology that is a unique pathway to achieving a certain efficiency level. Section IV.B of this notice discusses the results of the screening analysis for hearth products, particularly the designs DOE considered, those it screened out, and those that are the basis for the trial standard levels (TSLs) in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the NOPR technical support document (TSD).
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (max-tech) improvements in energy use for hearth products, using the design parameters for the least energy-intensive products available on the market or in working prototypes. The max-tech level that DOE determined for this rulemaking are described in section IV.C of this proposed rule and in chapter 5 of the NOPR TSD.
For each TSL, DOE projected energy savings from the products that are the subject of this rulemaking purchased in the 30-year period that begins in the year of compliance with standards (2021–2050).
DOE used its national impact analysis (NIA) spreadsheet model to estimate energy savings from potential standards for the products that are the subject of this rulemaking. The NIA spreadsheet model (described in section IV.H of this notice) calculates energy savings in site energy, which is the energy directly consumed by products at the locations where they are used. For electricity, DOE reports national energy savings on an annual basis in terms of primary (source) energy savings, which is the savings in the energy that is used to generate and transmit the site electricity. To calculate the primary energy savings, DOE derives annual conversion factors from the model used to prepare the Energy Information Administration's (EIA) most recent
DOE also estimates full-fuel-cycle (FFC) energy savings, as discussed in DOE's statement of policy and notice of policy amendment. 76 FR 51282 (August 18, 2011), as amended at 77 FR 49701 (August 17, 2012). The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt energy conservation standards for a covered product, DOE must determine that such action would result in “significant” energy savings. (42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the Act, the U.S. Court of Appeals for the District of Columbia Circuit, in
EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In determining the impacts of a potential energy conservation standard
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the economic impacts applicable to a particular rulemaking. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analyses.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and consumer discount rates. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value. For its analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with amended standards.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
The LCC savings for the considered energy conservation levels are calculated relative to a base case that reflects projected market trends in the absence of new or amended standards. DOE identifies the percentage of consumers estimated to receive LCC savings or experience an LCC increase, in addition to the average LCC savings associated with a particular standard level. In contrast, the PBP is measured relative to the baseline product. DOE's LCC and PBP analysis is discussed in further detail in section IV.F.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section IV.H, DOE uses the NIA spreadsheet to project national energy savings.
In establishing product classes and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards proposed in this notice would not reduce the utility or performance of the products under consideration in this rulemaking. DOE seeks comment regarding this tentative conclusion in Issue 4 of section VII.E “Issues on Which DOE Seeks Comment.”
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will transmit a copy of this proposed rule to the Attorney General with a request that the Department of Justice (DOJ) provide its determination on this issue. DOE will publish and respond to the Attorney General's determination in the final rule.
DOE also considers the need for national energy conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from new or amended standards are likely to provide improvements to the security and reliability of the nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the nation's needed power generation capacity, as discussed in section IV.M.
New or amended standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases associated with energy production. DOE conducts an emissions analysis to estimate how standards may affect these emissions, as discussed in section IV.K. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L.
EPCA allows the Secretary of Energy, in determining whether a standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent interested parties submit any relevant information regarding economic justification that does not fit into the other categories described previously,
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that proposed energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section V.B.1.c of this proposed rule.
EPCA typically establishes a lead time between the publication of new or amended energy conservation standards and the date by which manufacturers must comply with that standard. As specifically relates to hearth products, EPCA requires that any new or amended standard for a consumer product which the Secretary classifies as a covered product under 42 U.S.C. 6292(b) shall not apply to products manufactured within five years after the publication of a final rule establishing such standard. (42 U.S.C. 6295(l)(2)) Accordingly, presuming DOE makes a final coverage determination, compliance with any standard for hearth products would be required five years after publication of the final rule.
As discussed in section II.A of this NOPR, any final rule for amended or new energy conservation standards that is published on or after July 1, 2010 must address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) As previously stated, DOE considers the use of a continuously-burning pilot light to be standby mode energy consumption, and that disallowing use of the constant-burning pilot ignition systems would eliminate gas consumption for hearth products in standby mode.
In addition, DOE has tentatively determined that there is no off mode gas consumption for a hearth product's ignition module. As indicated in section III.B, this energy conservation standards rulemaking not only addresses but focuses on standby mode fossil fuel energy use.
DOE notes that in some instances, certain hearth product ignition modules may also have some ancillary electrical energy consumption in standby mode and/or off mode (see chapter 7 of the TSD). However, DOE has tentatively determined that such standby mode and off mode electrical energy consumption is
This section addresses the analyses DOE has performed for this rulemaking with regard to hearth products. Separate subsections will address each component of DOE's analyses.
DOE used three spreadsheet tools to estimate the impact of today's proposed standards. The first spreadsheet calculates LCCs and PBPs of potential standards. The second provides shipments forecasts and then calculates national energy savings and net present value impacts of potential standards. Finally, DOE assessed manufacturer impacts, largely through use of the Government Regulatory Impact Model (GRIM). All three spreadsheet tools are available online at the rulemaking portion of DOE's Web site:
Additionally, DOE estimated the impacts on utilities and the environment that would be likely to result from potential standards for hearth products. DOE used the most recent version of EIA's National Energy Modeling System (NEMS) for the utility and environmental analyses.
DOE develops information that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly-available information. The subjects addressed in the market and technology assessment for this hearth products rulemaking include: (1) A determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) quantities and types of products sold and offered for sale; (4) retail market trends; (5) regulatory and non-regulatory programs; and (6) technologies or design options that could improve the energy efficiency of the product(s) under examination. The key findings of DOE's market assessment are summarized below. See chapter 3 of the NOPR TSD for further discussion of the market and technology assessment.
In section III.A, DOE presented the scope of coverage for the rulemaking. Presently, hearth products are not covered consumer products. Section III.A discusses the scope and coverage for this rulemaking in the context of the notice of proposed coverage determination published in the
There is no statutory definition of “hearth product.” In the December 2013 NOPD, DOE proposed to adopt a definition of hearth product that means a gas-fired appliance that simulates a solid-fueled fireplace or presents a flame pattern (for aesthetics or other purpose) and that may provide space heating directly to the space in which it is installed.
In the December 2013 NOPD, DOE provided examples of several common hearth product types that would be covered under the proposed definition, including vented decorative hearth products, vented heater hearth products, vented gas logs, gas stoves, outdoor hearth products, and vent-less hearth
DOE recognizes that match-lit hearth products would be covered under the proposed definition for “hearth product.” However, since these products do not include a standing pilot ignition system, they would not be affected by the proposed prescriptive standard. Therefore, DOE did not include match-lit products in its analysis, and accordingly, the results of the analysis do not reflect impacts on match-lit products.
As discussed in section III.C, EPCA contains criteria that DOE follows when establishing product classes for setting different energy conservation standards for covered product types. (42 U.S.C. 6295(q)) DOE has tentatively concluded that, based on the information presented in section III.C, separate hearth product classes are not necessary for the prescriptive design requirement disallowing the use of standing pilots that is proposed in this NOPR.
In comments on the December 2013 NOPD, HPBA stated that there is no basis to assume that a ban on standing pilot lights could reasonably be implemented for the diverse range of products at issue. (HPBA, No. 5 at p. 9) With regards to this comment as it applies to product classes, it is unclear why a prescriptive requirement banning standing pilots could not be implemented across hearth product types. As previously stated, DOE surveyed product literature, performed teardown analyses, and conducted manufacturer interviews which revealed that the key components of electronic ignitions are shared by multiple product types. DOE found that alternatives to constant-burning pilot lights, namely match-lit and electronic ignition, were offered on all types of hearth systems, and that some of the alternatives (specifically electronic ignitions) would meet the safety requirements of those local jurisdictions where such requirements apply. Such evidence supports the conclusion that alternatives to constant-burning pilot lights are technologically feasible across the broad range of hearth products on the market. However, DOE also found that the implementation of alternatives to a constant-burning pilot are not implemented uniformly across all hearth types, given their slightly different characteristics. Thus, alternatives could be relatively more or less expensive to implement depending on the type of hearth product.
As shown in the engineering analysis of section IV.C below, while the prescriptive requirement would apply to all hearth products without establishing classes, DOE chose to analyze the most common hearth styles separately to more accurately assess the potential impacts of imposing a prescriptive requirement that would disallow the use of standing pilot ignition systems.
In a technology assessment, DOE identifies technologies and designs that could be used to improve the energy efficiency or performance of covered equipment. For this NOPR, DOE conducted a technology assessment to identify technologies or designs that could reduce the fuel consumption of hearth products. DOE has summarized the technologies and designs identified in Table IV.1. DOE seeks comment on its list of available technologies to reduce fuel consumption for hearth products; this is identified as Issue 6 in section VII.E, “Issues on Which DOE Seeks Comment.” See chapter 3 of the NOPR TSD for a detailed description of each technology option.
After identifying all potential technology options for reducing the energy consumption of hearth products, DOE performed the screening analysis (see section IV.B of this NOPR and chapter 4 of the NOPR TSD) on these technologies to determine which could be considered further in the analysis and which should be eliminated.
During manufacturer interviews, DOE inquired about these technologies or design considerations with regard to their prevalence and potential to achieve energy savings. With regard to the air-to-fuel ratio, burner port design, simulated log design, pan burner media, or reflective components, manufacturers found that these options resulted in either immeasurable or negligible energy savings. DOE received several responses during its manufacturer interviews that the design considerations DOE listed would have little or no bearing on reducing the input needed to achieve the required flame pattern. Manufacturers also indicated that an energy conservation standard based on one or more of these design options may inhibit hearth product manufacturers from providing a variety of overall aesthetic options. For these reasons, DOE did not consider these design options in the screening analysis.
DOE uses the following four screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
1.
2.
3.
4.
DOE considered several design options to assess their potential to reduce the fuel consumption of the products that are the subject of this rulemaking, both in active mode and in standby mode. In the end, three technology options were considered in the screening analysis: (1) electronic ignition; (2), condensing heat exchangers; and (3) circulating blowers. All technologies considered in the technology assessment are listed in Table IV.1.See chapter 3 of the NOPR TSD for a detailed description of each technology option.
DOE has tentatively concluded that the electronic ignition, condensing heat exchanger, and circulating blower would not be screened out by any of the four screening criteria listed above. DOE notes that these technologies are currently commercially available for hearth products as well as other residential products and commercial equipment, and that their use does not pose any significant health or safety hazard.
With regards to impact of the electronic ignition on product availability, DOE notes that an electronic ignition provides the same functionality as a millivolt standing pilot gas valve, specifically the ability to be used with a remote control or thermostat. DOE has also tentatively determined that electronic ignition components are available for a wide range of gas-fired equipment beyond hearth products, and that the ability of hearth manufacturers to comply with the standard will not be restricted for lack of available components.
DOE seeks comment regarding the tentative conclusions reached in its screening analysis including impacts on product availability or product utility. This is Issue 4 in section VII.E “Issues on Which DOE Seeks Comment.”
This engineering analysis determines the change in manufacturing cost of hearth products associated with a prescriptive design requirement that disallows the use of a standing pilot. This relationship between manufacturer selling price and reduced energy consumption serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the Nation. DOE has identified the following three methodologies to generate the manufacturing costs needed for the engineering analysis: (1) The design-option approach, which provides the incremental costs of adding to a baseline model design options that will improve its efficiency; (2) the efficiency-level approach, which provides the relative costs of achieving increases in energy efficiency levels, without regard to the particular design options used to achieve such increases; and (3) the cost-assessment (or reverse-engineering) approach, which provides “bottom-up” manufacturing cost assessments for both standing pilot models and electronic ignition models, based on detailed data as to costs for parts and material, labor, shipping/packaging, and investment.
For this NOPR, DOE conducted the engineering analysis for hearth products using a combination of the design-option approach and the cost-assessment approach. DOE selected hearth models that represented a range of hearth configurations (
DOE generated a bill of materials (BOM) by disassembling products representing a range of hearth configurations, including vented and unvented fireplaces, inserts, and stoves, vented and unvented gas log sets, and outdoor products. The BOMs describe the product in detail, including all manufacturing steps required to make and/or assemble each part. Subsequently, DOE developed a cost model that converted the BOMs into manufacturer production costs (MPCs). By applying derived manufacturer markups to the MPCs, DOE calculated the manufacturer selling prices.
DOE seeks comment on its general approach to the engineering analysis. This is Issue 7 in section VII.E, “Issues on Which DOE Seeks Comment.” See chapter 5 of the NOPR TSD for additional details about the engineering analysis.
For the engineering analysis, DOE reviewed the most common types of hearth products. Within each hearth type, DOE chose units for analysis that represent a cross-section of the hearth products market. As discussed in section IV.C.2 below, DOE eliminated the circulating blower and condensing heat exchanger technology options prior to the engineering analysis, since this rulemaking is focused on the standby mode energy use as described in section III.B. Consequently, the remaining technology—electronic ignition—became the main focus of DOE's analysis. DOE selected representative products for analysis that allowed DOE to determine whether any differences existed in ignition systems between hearth product types. DOE assumed that, should standing pilot ignitions be disallowed, manufacturers would convert standing pilot models to electronic ignition models rather than match-lit in order to provide the same level of safety, comfort, and functionality.
In order to inform the model selection process, DOE first surveyed product literature to determine whether clear differences in ignition systems existed between hearth products. Parts lists contained in installation and operation manuals for hearth products revealed that the key purchased components for electronic ignition systems—gas valves, pilot assemblies, and digital or analog control modules—are common across various hearth products, particularly for indoor fireplaces, fireplace inserts, stoves, and gas log sets. DOE also is aware that while gas log sets share these ignition components with other hearth product types, the nature of a gas log set (lacking a firebox or cabinet), means these components (particularly the gas valve and control module on electronic ignition systems) are more difficult to conceal. DOE seeks comment on the availability of these components and their applicability across hearth product
DOE selected units that represented the hearth configurations in Table IV.2.
As stated in section IV.A.2, DOE is aware of the industry claim that different hearth products serve different functions and differ in design. However, this engineering analysis is limited to a determination of the difference in manufacturer production cost between ignition styles (standing pilot and electronic ignition). DOE has tentatively determined that there is no difference in ignition components between various types of vented hearth products. DOE believes that the same gas valves, control modules, and pilot assemblies are used interchangeably between vented fireplaces, inserts, and stoves. Therefore, the engineering analysis determined one MPC that would apply globally to vented fireplaces, inserts, and stoves. DOE seeks comment on the assumption that vented fireplaces, inserts, and stoves are equivalent in terms of ignition component costs. This is identified as Issue 9 in section VII.E, “Issues on Which DOE Seeks Comment.”
Unvented hearth products differ from their vented counterparts in several respects; with regards to the ignition components, unvented hearth products require an oxygen depletion sensor. The oxygen depletion sensor consists of a thermocouple and a precisely calibrated pilot light. DOE analyzed a separate unvented fireplace, insert, and stove category and an unvented gas log set category in order to account for any potential cost difference for these components.
In addition, DOE considered that there are two main standing pilot valve types: manual and millivolt. The manual valve requires the user to manually open and close the valve and is, therefore, smaller, simpler, and cheaper. The millivolt gas valve uses a thermopile to generate a voltage difference such that the valve can be coupled with additional control systems, for example a remote control or thermostat. Since gas log sets are subject to physical space constraints that fireplaces, inserts, and stoves are not, DOE selected gas log sets with manual valves as representative of gas log sets with standing pilots. DOE selected models with millivolt gas valves as being representative of the fireplace, insert and stove vented and unvented categories.
The pilot light on manual or millivolt valves may be ignited using a match or using a piezo-electric or battery-powered sparker. Because the standing pilot can be ignited manually without the use of a sparker, and because the function of the pilot is not affected by how it is initially lit, DOE does not consider this sparker an integral component to the ignition system for the purposes of this analysis. Therefore, DOE did not include these costs in its analysis of the cost of a standing pilot ignition.
As indicated in section III.B, in light of the greater energy savings possible from a design requirement disallowing standing pilot ignitions as opposed to a performance standard, this rulemaking is focused on standby mode energy consumption. However, two of the three technologies that passed the screening analysis in Section IV.B (the condensing heat exchanger and circulating fan) are technologies that affect the active mode energy consumption of a subset of hearth products. DOE therefore eliminated the condensing heat exchanger and circulating fan prior to conducting its engineering analysis. Rather, DOE focused its engineering analysis on the impacts of a prescriptive design requirement to remove the standing pilot ignition system and replace it with a system that does not use a continuously burning pilot.
For each of the representative products, DOE estimated manufacturer production costs for standing pilot ignitions and electronic ignitions. DOE has tentatively determined that the pilot light is a feature that can potentially be present on any type of hearth product and is the primary mode of energy consumption for those hearth products. Neither public comment nor the manufacturer interview process revealed additional design options that could replace a standing pilot or substantially reduce the fuel consumption of the pilot light, save for a match-lit burner. (However, a match-lit burner would not comply with the American National Standards Institute (ANSI) safety standards, and, thus, was not considered as a direct replacement for standing pilot ignition systems.) DOE has also tentatively concluded that a performance standard for standby mode as opposed to a design requirement would be impractical, since DOE found that there were no additional design options that would reduce the fuel consumption of a pilot light. In addition, a performance standard would increase burden on manufacturers, as it would require testing to demonstrate compliance with such standard.
As previously stated, hearth products currently are not covered products. They would become covered products should the December 2013 NOPD result in a positive final determination of coverage. Therefore, there is currently no minimum efficiency standard in place for DOE to use as a baseline for comparison. In terms of standby mode operation, DOE has tentatively determined that the standing pilot ignition system represents the baseline design in terms of energy consumption. A standing pilot consumes the most energy during standby mode operation; match-lit and intermittent pilots both represent reductions in energy consumption compared to the standing pilot.
DOE understands that in those jurisdictions where match-lit systems are permissible, and particularly for gas log sets, match-light remains a viable
EPCA requires DOE to determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for each class of covered products. (42 U.S.C. 6295(o)) As described previously (see section IV.A.2 and IV.B), none of the technologies identified by DOE to improve active mode efficiency could be applied to all hearth products, so DOE's analysis focused on reducing the standby mode energy consumption as providing the greatest opportunity for energy savings. In the case of a standing pilot, the maximum reduction in energy use possible is removal of the standing pilot entirely, and switching to either a match-lit or electronic ignition system. Both of these possibilities would be compliant with the proposed requirement to disallow the use of standing pilot ignition systems. This is the scenario DOE has chosen to analyze (see Table IV.2); as noted above, DOE is unaware of any other design options on the market that would substantially reduce the energy consumption of hearth products during standby operation.
DOE identified intermittent pilot ignition as the relevant design option for reducing standing pilot energy consumption, as determined in the market assessment. Next, DOE selected products for the physical teardown analysis that represented the most common configurations of hearth products. DOE gathered the information from the physical teardown analysis to create bills of materials using a reverse engineering methodology. DOE then calculated the manufacturer production cost (MPC) for complete hearth products utilizing both design options, standing pilot and intermittent pilot ignition systems.
During the preparation and refining of the cost-efficiency comparison and MPCs for this NOPR, DOE also held interviews with manufacturers to gain insight into the hearth industry. DOE used the information gathered from these interviews, along with the information gathered through additional teardown analysis, to refine assumptions in the cost model. Next, DOE converted the MPCs into MSPs using publicly-available industry financial data, in addition to manufacturers' feedback. Further information on the analysis methodology is presented in subsections (a) through (g) of this section. For additional detail, see chapter 5 of the NOPR TSD.
To assemble bills of materials (BOMs) and to calculate the manufacturing costs of the different components in hearth products, DOE disassembled several hearth products into their base components and estimated the materials, processes, and labor required for the manufacture of each individual component, a process referred to as a “physical teardown.” Using the data gathered from the physical teardowns, DOE characterized each component according to its weight, dimensions, material, quantity, and the manufacturing processes used to fabricate and assemble it. The teardown analysis for this engineering analysis included 14 physical teardowns.
DOE used the teardown analysis to create detailed, structured BOMs for each hearth type or style. The BOMs incorporate all materials, components, and fasteners (classified as either raw materials or purchased parts and assemblies), and characterize the materials and components by weight, manufacturing processes used, dimensions, material, and quantity. The BOMs from the teardown analysis were then used as inputs placed into the cost model to calculate the MPC for the representative product for each product type and for each ignition type. See chapter 5 of the NOPR TSD for more details on the teardown analysis.
The cost model is a computer spreadsheet that converts the materials and components in the BOMs into dollar values based on the price of materials, average labor rates associated with manufacturing and assembling, and the cost of overhead and depreciation. To convert the information in the BOMs to dollar values for the NOPR analysis, DOE collected information on labor rates, tooling costs, raw material prices, and other factors. For purchased parts, the cost model estimates the purchase price based on volume-variable price quotations and discussions with manufacturers. For fabricated parts, the prices of raw metal materials (
Once the cost estimate for each teardown unit was finalized, DOE totaled the cost of materials, labor, and direct overhead used to manufacture a product in order to calculate the manufacturer production cost for the NOPR. The total cost of the product was broken down into two main costs: (1) The full manufacturer production cost or MPC; and (2) the non-production cost, which includes selling, general, and administration (SG&A) expenses; the cost of research and development; and interest from borrowing for operations or capital expenditures. DOE estimated the MPC for both ignition designs (
The result of this engineering analysis is a typical MPC for a unit with standing pilot in each product group and the added incremental cost of converting a standing pilot ignition to an electronic ignition. DOE determined five of these MPCs and incremental costs, each corresponding to one of the five hearth product groups DOE selected for analysis. Section IV.C.4 of this NOPR and chapter 5 of the NOPR TSD contain the MPCs and incremental costs.
DOE uses MSPs to conduct its downstream economic analyses. DOE calculated the MSPs by multiplying the manufacturer production cost by a mark-up and adding the product's
Throughout the rulemaking process, DOE seeks feedback and insight from interested parties to improve the information used in its analyses. DOE interviewed manufacturers as a part of the NOPR manufacturer impact analysis (see section IV.J). During the confidential interviews, DOE sought feedback on all aspects of its analyses for hearth products. For the engineering analysis, DOE discussed the analytical assumptions, estimates, and purchased part prices with manufacturers. DOE considered all the information manufacturers provided when refining the cost model and assumptions. However, DOE incorporated equipment and manufacturing process figures into the analysis as averages in order to avoid disclosing sensitive information about individual manufacturers' products or manufacturing processes. More details about the manufacturer interviews are contained in chapter 12 of the NOPR TSD.
The results from the engineering analysis are shown in Table IV.3. The cost model calculates an MPC for an associated annual production volume. As described in section IV.C.3.b, the cost model calculates manufacturer overhead and depreciation costs on a per-unit basis. Therefore, given the same number of employees, tooling, and equipment, a higher annual production volume will generally result in a lower MPC. Additionally, purchased parts scale non-linearly with volume: at low volumes, purchase part prices increase exponentially. Production volumes varied significantly across the segments of the hearth products industry. Replacing a standing pilot ignition system with an intermittent pilot ignition system largely means switching out one set of purchased part components with another. Purchased part component prices are dependent upon the volumes in which they are purchased, and as a result, the annual production volume for a given market segment could have a large impact on the cost of changing from a standing pilot ignition system to an intermittent pilot ignition system. As part of the confidential manufacturer interview process, DOE asked manufacturers to confirm costs and quantities particularly for purchase parts associated with the ignition system. DOE notes that this feedback is crucial in obtaining MPCs that accurately reflect typical industry values. Accordingly, DOE is seeking further feedback on the derived MPCs found in Table IV.3. This is Issue 10 in section VII.E, “Issues on Which DOE Seeks Comment.”
The “Standing Pilot MPC” represents the cost to the manufacturer of the complete hearth product with a typical standing pilot ignition. The “Added EIS Cost” represents the incremental cost to the manufacturer of replacing the standing pilot ignition components with an electronic ignition. DOE has not included remote control or other user control features as part of either ignition system. While DOE acknowledges many electronic ignition systems are sold with a remote control and receiver, DOE does not consider these components necessary to the intermittent function of the pilot light. Therefore, DOE has not considered remote controls or remote control receivers in the “Added EIS Cost.”
The standing pilot MPC derived for vented fireplaces, inserts and stoves is higher than for unvented for several reasons. The representative models used for the vented category are direct vent. These units typically include a glass viewing pane with spring-loaded clamps holding the viewing pane in place. They also include blowers that regulate airflow and moderate surface temperatures so that the unit can be installed flush against combustible building materials. Again, DOE estimates that the MPC of similarly-sized vented units are the same. DOE makes this assumption because product advertising and literature and manuals indicated that key components to the ignitions systems are shared across product types and throughout industry.
In the case of gas log sets, the analysis used standing pilot models with manual gas valves. These valves are less expensive than millivolt gas valves, and so the difference between standing pilot and electronic ignition system is higher for gas log sets than for fireplaces, inserts, and stoves.
The results from the engineering analysis were used in the LCC analysis to determine consumer prices for hearth products using both design options, standing pilot and electronic ignition. Using the manufacturer markup, DOE calculated the MSPs of the representative hearth products from the MPCs developed using the cost model.
Again, DOE seeks comment on the MPCs estimated for hearth products and this is identified as Issue 10 in section VII.E “Issues on Which DOE Seeks Comment.” Chapter 5 of the NOPR TSD provides the full list of MPCs and MSPs for each analyzed representative product group.
DOE uses distribution channel markups (
DOE characterized two distribution channels to describe how hearth products pass from the manufacturer to consumers: (1) Replacement market and (2) new construction. The replacement market channel is characterized as follows:
The new construction distribution channel is characterized as follows:
The derivation of the manufacturer mark-up is discussed in section IV.C.3.e. To develop mark-ups for the parties involved in the distribution of the product, DOE utilized several sources, including: (1) The Heating, Air-Conditioning & Refrigeration Distributors International (HARDI) 2013 Profit Report
For wholesalers and contractors, DOE develops baseline and incremental mark-ups based on the product mark-ups at each step in the distribution chain. The baseline mark-up relates the change in the manufacturer selling price of baseline models to the change in the consumer purchase price. The incremental mark-up relates the change in the manufacturer selling price of higher-efficiency models (the incremental cost increase) to the change in the consumer purchase price.
In addition to the mark-ups, DOE derived State and local taxes from data provided by the Sales Tax Clearinghouse.
Chapter 6 of the NOPR TSD provides further detail on the estimation of markups.
The purpose of the energy use analysis is to determine the annual energy consumption of pilot lights in residential hearth products in use in the United States in representative homes and to assess the energy savings potential in switching from standing pilot lights to intermittent pilot lights. DOE used information from teardowns and manufacturer literature to establish a representative input capacity for each hearth product pilot light option. These input capacities are consistent with comments received from stakeholders during the previous rulemaking.
The energy use analysis seeks to capture the range of operating conditions for hearth products in the field (
DOE derived a range of possible operating hours for hearth products from field studies.
DOE used the household location data from RECS 2009 to establish the length of the heating season for each household by accounting for the National Oceanic and Atmospheric Administration (NOAA) weather data for that location.
RECS 2009 data also provided other information about the household that was used to further refine the analysis, such as primary heating appliance type, whether the hearth product was the primary heating appliance, fuel type of primary heating appliance, whether the hearth product was vented or vent-less, and whether the house has a chimney.
The pilot light operating hours, coupled with the data on fuel use per hour from the engineering analysis, allowed for the calculation of hearth products' pilot light annual energy usage. The average energy use of a hearth product's standing pilot is approximately 3.6 million Btu per year. To estimate the annual electricity used by an intermittent pilot, DOE used the representative burner input and the average duty cycle length to calculate the number of cycles, and a conservative estimate of 30 seconds on-time per ignition. DOE coupled the above value with the representative input of 50 W to derive electricity consumption. The average energy use of the intermittent
In the RECS 2009 sample, 23 percent of households with hearth products used liquefied petroleum gas (LPG). Because LPG is a relatively expensive fuel, DOE understands that this subset of users closely monitors pilot light operation. Therefore, for households with LPG-fired hearth products, DOE assumed the pilot operating hours to be approximately equal to the hearth product BOH.
DOE seeks comment regarding its assumptions and methodology used in determining pilot light energy use and this is identified as Issue 11 in section VII.E “Issues on Which DOE Seeks Comment.”
In evaluating the energy savings of the considered efficiency measure, DOE considered the heat input of the pilot light into the conditioned space. Eliminating the gas pilot would mean that some of the heat would not contribute to heating the home, which would mean that the main heating system would need to operate somewhat more, and the air conditioning system would operate slightly less in cases where the pilot is left on year-round. DOE based its analysis for vented hearth products on a report from the Canadian Centre for Housing Technology,
It is important to note that DOE is proposing a prescriptive standard to eliminate the use of standing pilots in hearth products. As such, it would only reduce standby energy use, and would have no effect on hearth products' active-mode energy consumption. Therefore, the standard, if adopted, would not be expected to affect consumer usage of the product, and, thus, no rebound effect was applied to the energy use of hearth products.
DOE projected that household weights and household characteristics in 2021, the first full year of compliance with any new energy conservation standards for hearth products, would be the same as in RECS 2009. To characterize future new homes, DOE used a subset of RECS 2009 homes that were built after 2000.
DOE adjusted the energy use estimated for 2009 to normalize for weather by using 10-year heating degree-day (HDD) data from NOAA for each geographical region.
DOE requests comment on the extent of assumed pilot light usage, specifically the percentages of consumers who operate their hearth product's standing pilot: (a) Year-round; (b) during the heating season; and (c) only when operating the unit. DOE also requests comment on the pilot operating hours of LPG-fired hearth products and determination of heat input from the pilot light into the conditioned space. This is Issue 12 in section VII.E, “Issues on Which DOE Seeks Comment.”
In determining whether an energy conservation standard is economically justified, DOE considers the economic impact of potential standards on consumers. The effect of new or amended standards on individual consumers usually includes a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:
• LCC (life-cycle cost) is the total consumer cost of an appliance or product, generally over the life of the appliance or product. The LCC calculation includes total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs), operating costs (energy, repair, and maintenance costs), equipment lifetime, and discount rate. Future operating costs are discounted to the time of purchase and summed over the lifetime of the appliance or product.
• PBP (payback period) measures the amount of time it takes consumers to recover the assumed higher purchase price of a more energy-efficient product through reduced operating costs. Inputs to the payback period calculation include the installed cost to the consumer and the first-year operating costs.
DOE analyzed the net effect of potential hearth product standards on consumers by calculating the LCC and PBP for each household for each considered pilot option. DOE measured the PBP and the change in LCC when switching from standing pilot to intermittent pilot in each hearth product type.
DOE performed the LCC and PBP analysis using a spreadsheet model combined with Crystal Ball (a commercially-available software program used to conduct stochastic analysis using Monte Carlo simulation and probability distributions) to account for uncertainty and variability among the input variables (
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. (42 U.S.C. 6295(o)(2)(B)(iii)) DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required. Since there is no DOE test procedure for hearth products, DOE based its rebuttable pay back analysis on the average energy use and costs calculated in the LCC analysis.
As discussed in section IV.E, DOE developed nationally representative household samples from 2009 RECS. For each sampled household, DOE determined the energy consumption of the hearth product pilot light and the appropriate energy prices in the area where the household is located.
DOE calculated the LCC and PBP for all hearth product consumers as if each were to purchase the product in the year that compliance with amended standards is required. At the time of preparation of the NOPR analysis, the expected issuance date for the final rule was in December 2015. For newly-covered products, EPCA prescribes a five-year period between the standard's publication date and the compliance date (42 U.S.C. 6295(l)(2)), which leads to a compliance date in December 2020. For purposes of its analysis, DOE modeled hearth products purchased on or after this date as if they operated for a full year beginning on January 1, 2021 and continuing thereafter.
As noted above, DOE's LCC and PBP analyses generate values that calculate the payback period for consumers of potential energy conservation standards, which includes, but is not limited to, the three-year payback period contemplated under the rebuttable presumption test. However, DOE routinely conducts a full economic analysis that considers the full range of impacts, including those to the consumer, manufacturer, Nation, and environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification).
The primary inputs for establishing the total installed cost are the baseline consumer product price, standard-level consumer price increases, and installation costs (labor and material cost). Baseline consumer prices and standard-level consumer price increases were determined by applying mark-ups to manufacturer selling price estimates, including sales tax where appropriate. The installation cost is added to the consumer price to arrive at a total installed cost.
DOE found that the historic real (
Because the pilot light is a component of the hearth product, the installation costs for most installations was $0. In a fraction of installations, the intermittent pilot could necessitate an electrical connection, although many intermittent pilots are battery powered, and many hearth products already have electrical connections. For the cases where a new electrical connection is needed, DOE assumed a percentage of these needed electrical connection retrofits, with the probability increasing the older the house is. Similar assumptions were made for electrical grounding. For these cases needing retrofits, labor and material information was obtained from RS Means 2013 Residential Cost Data.
The primary inputs for calculating the operating costs are product energy consumption, product efficiency, energy prices and forecasts, maintenance and repair costs, product lifetime, and discount rates. DOE uses discount rates to determine the present value of lifetime operating expenses. The discount rate used in the LCC analysis represents the rate from an individual consumer's perspective. Much of the data used for determining consumer discount rates comes from the Federal Reserve Board's triennial Survey of Consumer Finances.
For each sample household, DOE determined the energy consumption for the hearth product ignition devices using the approach described in section IV.E. As noted previously, because the proposed standard concentrates on reduction in standby mode energy consumption, DOE does not anticipate a rebound effect in terms of consumer usage.
Using the most current data from EIA on average energy prices in various States and regions,
To estimate future prices, DOE used the projected annual changes in average residential natural gas, LPG, and electricity prices in the Reference case projection in
Repair costs are associated with repairing or replacing components in the hearth product that have failed,
Product lifetime is the age at which an appliance is retired from service. DOE assumed that the lifetime of the ignition device is identical to the lifetime of the hearth product. DOE conducted an analysis of hearth product lifetimes using a combination of data on shipments and the hearth product stock (see section IV.G) and RECS 2009 data on the age of the hearth products in homes. The data allowed DOE to develop a survival function, which provides a range from minimum to maximum lifetime, as well as an average lifetime. The average lifetime estimated for hearth products is 16 years. Chapter 8 of the NOPR TSD provides further details on the methodology and sources DOE used to develop hearth product lifetimes. DOE requests feedback on the lifetime assumptions. This is identified as Issue 16 in section VII.E, “Issues on Which DOE Seeks Comment.”
In the calculation of LCC, DOE applies discount rates to estimate the present value of future operating costs. The discount rate used in the LCC analysis represents the rate from an individual consumer's perspective.
To establish discount rates for consumers, DOE's approach involved identifying all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance energy cost savings and maintenance costs. It estimated the average percentage shares of the various types of debt and equity by household income group using data from the Federal Reserve Board's Survey of Consumer Finances (SCF) for 1995, 1998, 2001, 2004, 2007, and 2010.
See chapter 8 in the NOPR TSD for further details on the development of discount rates for the LCC analysis.
To estimate the share of consumers affected by a potential energy conservation standard, DOE's LCC and PBP analysis considers the projected distribution (
For each of the hearth product groups, DOE estimated current market shares of the two pilot system types based on model information and manufacturer interviews. Because there are no data indicating trends in the market shares, DOE used the current shares to represent the market in 2021 (see Table IV.4).
For further information on DOE's estimation of the base-case efficiency distributions for hearth products, see chapter 8 of the NOPR TSD. DOE requests feedback on the base-case efficiency distribution. This is identified as Issue 17 in section VII.E, “Issues on Which DOE Seeks Comment.”
The PBP is the amount of time it takes the consumer to recover the additional installed cost of more-efficient products, compared to baseline products, through energy cost savings. The simple PBP does not account for changes in operating expense over time or the time value of money. Payback periods are expressed in years. Payback periods that exceed the life of the product mean that the increase in total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation are the total installed cost of the product to the customer for each efficiency level and the average annual operating expenditures for each efficiency level. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy (and, as applicable, water) savings during the first year that the consumer will receive as a result of the standard, as calculated
The results of DOE's PBP analysis are presented in section V.B.1.
DOE uses forecasts of product shipments to calculate the national impacts of potential new or amended energy conservation standards on energy use, NPV, and future manufacturer cash flows. Historical data indicate that shipments of hearth products are very sensitive to overall economic activity. Because DOE observed a strong correlation between housing starts and hearth product shipments, it used a 10-year average of the ratio of hearth product shipments to housing starts, along with the forecasted housing starts from
To estimate the impact of the considered standard on future hearth product shipments, DOE applied the same product price elasticity as it has used in many previous rulemakings for consumer products (see chapter 9 of the NOPR TSD). This elasticity relates an incremental increase in the price of hearth products to a decrease in shipments.
Regarding the potential for consumers to switch to other products, DOE recognizes that hearth products are purchased for the convenience of natural gas as a fuel source (as opposed to wood) and realistic flame characteristics (relative to electric-powered units). For this reason, DOE assumed that fuel switching among these products due to the imposition of the design standard would be negligible. DOE requests comment on this assumption, and this is identified as Issue 18 in Section VII.E, “Issues on Which DOE Seeks Comment.”
DOE requests feedback on the methodology for hearth product shipment projections. This is identified as Issue 19 in section VII.E, “Issues on Which DOE Seeks Comment.” For details on the shipments analysis, see chapter 9 of the NOPR TSD.
The NIA assesses the national energy savings (NES) and the net present value (NPV) from a national perspective of total consumer costs and savings expected to result from new or amended energy conservation standards at specific efficiency levels. DOE determined the NPV and NES for the potential standard levels considered for the hearth product types analyzed.
To make the analysis more accessible and transparent to all interested parties, DOE used a computer spreadsheet model (as opposed to probability distributions) to calculate the energy savings and the national consumer costs and savings from each TSL.
A key component of the NIA is the trend in energy efficiency forecasted for the base case (without new or amended standards) and each of the standards cases. Section IV.F.2.f describes how DOE developed a base-case energy efficiency distribution for hearth products for the first full year of compliance (2021). DOE projected base-case efficiency assuming a constant efficiency distribution over the 30-year period. Historical trends of data for this product are not available, especially regarding the necessary ignition details. Therefore, DOE has estimated current standing pilot shipments and assumed those would be constant during the 30-year period starting from compliance (2021–2050).
To estimate the impact that energy conservation standards for hearth products (
To develop the NES, DOE calculates annual energy consumption of the considered products for the base case and then compares that to each potential standards case (TSL). DOE calculates the annual energy consumption for each case using the appropriate per-unit annual energy use data multiplied by the projected hearth product shipments for each year. As explained in section IV.E, DOE did not include a rebound effect for hearth products.
To estimate the national energy savings expected from appliance standards, DOE used a multiplicative factor to convert site electricity consumption (at the home) into primary energy consumption (the energy required to convert and deliver the site electricity). These conversion factors account for the energy used at power plants to generate electricity. The factors vary over time due to changes in generation sources (
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use full-fuel-cycle (FFC) measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
The inputs for determining NPV are: (1) Total annual installed cost; (2) total annual savings in operating costs; (3) a discount factor to calculate the present value of costs and savings; (4) present value of costs; and (5) present value of savings. To develop the national NPV of consumer benefits from potential energy conservation standards, DOE calculates annual operating costs (energy costs and repair and maintenance costs) and annual installed costs for the base case and the standards cases. DOE calculates annual energy expenditures from annual energy consumption using forecasted energy prices in each year. DOE calculates annual product expenditures by multiplying the price per unit times the projected shipments in each year. As discussed in section IV.F.1, DOE assumed a constant future product price trend.
The aggregate difference each year between operating cost savings and increased installed costs is the net savings. DOE multiplies the net savings in future years by a discount factor to determine their present value. DOE estimates the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate, in accordance with guidance provided by the Office of Management and Budget (OMB) to Federal agencies on the development of regulatory analysis.
In analyzing the potential impacts of new or amended standards on consumers, DOE evaluated the impacts on identifiable subgroups of consumers that may be disproportionately affected by a national standard. The purpose of a subgroup analysis is to determine the extent of any such disproportional impacts. For this NOPR, DOE evaluated impacts of potential standards on two subgroups: (1) Senior households and (2) low-income households. The subgroup samples were identified from RECS 2009 data on income and age of household members. DOE used the LCC and PBP spreadsheet model to analyze the LCC impacts and PBP for those particular consumers at the considered standard. The consumer subgroup results for the hearth products TSL are presented in section V.B.1.b of this notice and in chapter 11 of the NOPR TSD.
DOE performed a Manufacturer Impact Analysis (MIA) to estimate the financial impact of an energy conservation standard on manufacturers of gas hearth products and to calculate the potential impact of such standards on employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (GRIM), an industry cash-flow model with inputs specific to this rulemaking. The key GRIM inputs are data on the industry cost structure, product costs, shipments, and assumptions about markups and conversion expenditures. The key output is the industry net present value (INPV). DOE used the GRIM to calculate cash flows using standard accounting principles and to compare changes in the INPV between a base case and each TSL (the standards case). The difference in INPV between the base case and a standards case represents the financial impact of energy conservation standards on gas hearth product manufacturers. DOE used different sets of assumptions (markup scenarios) to represent the uncertainty surrounding potential impacts on prices and manufacturer profitability as a result of standards. Different sets of assumptions will produce a range of INPV results. The qualitative part of the MIA addresses the proposed standard's potential impacts on manufacturing capacity and industry competition, as well as factors such as product characteristics, impacts on particular subgroups of firms, and important market and product trends. The complete MIA is outlined in chapter 12 of the NOPR TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the gas hearth industry. This industry characterization was based on the market and technology assessment, preliminary manufacturer interviews, and publicly-available information. Specifically, DOE developed its industry profile using a combination of sources, including public information, such as Securities and Exchange Commission (SEC) 10–K reports,
As part of Phase 1, DOE conducted structured, detailed interviews with a representative cross-section of manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to identify key issues or concerns and to inform and validate assumptions used in the GRIM. The industry profile developed as a result of Phase 1 research and interviews includes: (1) Further detail on the overall market and product characteristics; (2) financial parameters such as net plant, property, and equipment; selling, general and administrative (SG&A) expenses; research and development (R&D) expenses; cost of goods sold; and tax rates; and (3) trends in the number of
In Phase 2 of the MIA, DOE prepared an industry cash-flow analysis to quantify the potential impacts of an energy conservation standard on manufacturers of gas hearth products. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) Create a need for increased investment; (2) raise production costs per unit; and (3) alter revenue due to higher per-unit prices and/or possible changes in sales volumes. To quantify these impacts, DOE used the GRIM to perform a cash-flow analysis for the gas hearth industry using financial values derived during Phase 1 and the shipment scenario used in the NIA.
In Phase 3 of the MIA, DOE evaluated subgroups of manufacturers that may be disproportionately impacted by energy conservation standards or that may not be represented accurately by the average cost assumptions used to develop the industry cash-flow analysis. For example, small manufacturers, niche players, or manufacturers exhibiting a cost structure that largely differs from the industry average could be more negatively affected. DOE identified two subgroups for separate impact analyses: (1) Manufacturers of gas log sets; and (2) small businesses. The subgroup of gas log set manufacturers is discussed in section V.B.2.d of this notice, “Impacts on Subgroups of Manufacturers,” and the small manufacturer subgroup is discussed in section VI.B, “Review Under the Regulatory Flexibility Act.” Impacts on both subgroups are also addressed in chapter 12 of the NOPR TSD.
DOE uses the GRIM to quantify changes in cash flow due to new standards that result in a higher or lower industry value. The GRIM uses a standard, annual cash-flow analysis using standard accounting principles that incorporates manufacturer costs, markups, shipments, and industry financial information as inputs. The GRIM models changes in costs, distribution of shipments, investments, and manufacturer margins that could result from a potential energy conservation standard. The GRIM spreadsheet uses the inputs to arrive at a series of annual cash flows, beginning in 2014 (the base year of the analysis) and continuing to 2050. Manufacturers incur capital and product conversion costs in the period between the date at which the rule is promulgated and the compliance date of an amended standard. To capture the impacts of these expenditures on industry finances, the MIA analysis period begins before the compliance year. DOE calculated INPVs by summing the stream of annual discounted cash flows during this period. For gas hearth manufacturers, DOE used a real discount rate of 8.7 percent, which was derived from industry financial information and then modified according to feedback received during manufacturer interviews.
After calculating industry cash flows and INPV, DOE compared changes in INPV between the base case and the standards case. The difference in INPV between the base case and the standards case represents the financial impact of that potential energy conservation standard on manufacturers. As discussed previously, DOE collected information on key GRIM inputs from a number of sources, including publicly-available data and confidential interviews with manufacturers (described in the next section). The GRIM results are shown in section V.B.2. Additional details about the GRIM, the discount rate, and other financial parameters can be found in chapter 12 of the NOPR TSD.
Manufacturing a higher-efficiency product is typically more expensive than manufacturing a baseline product due to the use of more complex components, which are typically more costly than baseline components. The changes in the manufacturer production costs (MPCs) of the analyzed products can affect the revenues, gross margins, and cash flow of the industry, making these equipment cost data key GRIM inputs for DOE's analysis.
In the MIA, DOE used the MPCs calculated in the engineering analysis, as described in section IV.C and further detailed in chapter 5 of the NOPR TSD. In addition, DOE used information from its teardown analysis, described in chapter 5 of the TSD, to disaggregate the MPCs into material, labor, and overhead costs. These costs were shared with manufacturers and revised to incorporate their feedback.
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of these values by product group and ignition type. Changes in sales volumes and product mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipments forecasts derived in the shipments analysis for the period 2014 (the base year) to 2050 (the end year of the analysis). The NIA shipments forecasts assume price elasticity of demand, whereby shipment volumes in the standards case decline relative to the base case as MPCs rise and, in doing so, drive up end-user purchase prices. See section IV.G. above and chapter 9 of the NOPR TSD for additional details.
An energy conservation standard would cause manufacturers to incur one-time conversion costs to bring their production facilities and product designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with a design standard eliminating standing pilot lights. For the MIA, DOE classified these conversion costs into two major groups: (1) Product conversion costs; and (2) capital conversion costs. Product conversion costs are one-time investments in research, development, testing, certification, marketing, and other non-capitalized costs necessary to make products comply with an energy conservation standard. Capital conversion costs are one-time investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new compliant product designs can be fabricated and assembled.
To evaluate the level of capital conversion expenditures manufacturers would likely incur to comply with a potential energy conservation standard, DOE used manufacturer interviews to gather data on the anticipated level of capital investment that would be required to adapt to a design standard eliminating standing pilot lights. Based on manufacturer feedback, DOE estimated an average capital expenditure per manufacturer, which it then applied to the entire industry. DOE validated manufacturer comments through estimates of capital expenditure requirements derived from the product teardown analysis and engineering analysis described in chapter 5 of the NOPR TSD.
DOE assessed the product conversion costs by integrating quantitative and qualitative data. DOE considered feedback from manufacturers regarding potential product conversion costs and validated those numbers against engineering estimates of redesign efforts. Manufacturer data were aggregated to better reflect the industry as a whole and to protect confidential information.
DOE assumes that all conversion-related investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the new standard. The conversion cost figures used in the GRIM can be found in section V.B.2 of this notice. For additional information on the estimated product and capital conversion costs, see chapter 12 of the NOPR TSD.
Manufacturer selling prices (MSPs) include direct manufacturing production costs (
Under the preservation of gross margin percentage scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels, which assumes that manufacturers would be able to maintain the same amount of profit as a percentage of revenues at all efficiency levels for the product in question. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase as well. Based on publicly-available financial information for manufacturers of gas hearth products, as well as comments received during manufacturer interviews, DOE assumed the average non-production cost markup—which includes SG&A expenses, R&D expenses, interest, and profit—to be 1.45 for all gas hearth products.
Because this markup scenario assumes that manufacturers would be able to maintain their gross margin percentage markups as production costs increase in response to an energy conservation standard, it represents a high bound to industry profitability, as manufacturers are able to fully pass through additional costs due to standards to consumers.
In the preservation of per unit operating profit scenario, manufacturer markups are set so that operating profit one year after the compliance date of the energy conservation standard is the same as in the base case on a per-unit basis. Under this scenario, as the costs of production increase under a standards case, manufacturers are generally required to reduce their markups to a level that maintains base-case operating profit per unit. The implicit assumption behind this markup scenario is that the industry can only maintain its operating profit in absolute dollars per unit after compliance with the new standard is required. Therefore, operating margin in percentage terms is reduced between the base case and standards case. DOE adjusted the manufacturer markups in the GRIM at each TSL to yield approximately the same earnings before interest and taxes in the standards case as in the base case. This markup scenario represents a low bound to industry profitability under an energy conservation standard, because manufacturers are not able to fully pass through to consumers the additional costs due to standards.
As part of MIA, DOE discussed the potential impacts of an energy conservation standard with manufacturers of gas hearth products. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the industry. All interviews provided information that DOE used to evaluate the impacts of potential energy conservation standards on manufacturer cash flows, manufacturing capacities, and employment levels.
In interviews, DOE asked manufacturers to describe their concerns with the rulemaking regarding gas hearth products. The following section highlights manufacturer concerns that helped to shape DOE's understanding of potential impacts of an energy conservation standard on the industry. Manufacturer interviews are conducted under non-disclosure agreements (NDAs), so DOE does not document these discussions in the same way that it does public comments in the comment summaries. The following sections highlight the most significant of manufacturers' statements, although all concerns expressed by manufacturers were considered in DOE's analysis.
According to manufacturers, units with electronic ignition systems are more expensive to manufacture than units with standing pilot lights. Manufacturers indicated that purchasing components for electronic ignition systems increases per-unit production costs and, by extension, raises the retail price of products. Manufacturers stated that by driving up their cost of goods sold as well as the end-user purchase price, a standard eliminating standing pilot lights could lead to a drop in consumer demand. Because gas hearth products are not typically purchased exclusively for heating purposes but rather are valued by customers for their aesthetic appeal, manufacturers indicated that higher prices could depress demand if customers decide the decorative benefit of gas hearth products does not merit the higher costs. A fall in sales could, in turn, impact industry profitability.
Additionally, manufacturers stated that shipments of gas hearth products declined significantly over the last decade, in part due to the economic recession and a related decline in new-home construction. Several manufacturers forecast steady or declining shipments in future years absent an energy conservation standard. Those interviewed generally argued that if an energy conservation standard raises the price of gas hearth products, depresses demand, and reduces profitability, it could drive manufacturers to exit the market.
Small manufacturers expressed concern that an energy conservation standard for gas hearth products could alter the competitive dynamics of the market, favoring a subset of large manufacturers over their small-business competitors. Based on economies of scale, manufacturers that produce gas hearth products at high volumes are typically able to source components at lower per-unit prices than manufacturers that produce at lower volumes. In general, manufacturers of gas hearth products do not manufacture the components used for electronic ignition systems in-house. Rather, they source them from component suppliers. In interviews, manufacturers indicated that large manufacturers with high production volumes are able to source these components at relatively low cost. Small manufacturers with lower production volumes, in contrast, noted that the comparatively high cost they would incur to purchase electronic ignition system components would
Multiple manufacturers stated that electronic ignition systems represent a more complicated and less reliable technology than standing pilot lights. These manufacturers indicated that units with electronic ignition systems often require more effort to repair and maintain. One manufacturer stated that electronic ignition systems account for a small fraction of their sales but the vast majority of their service calls, and several manufacturers suggested higher costs of maintaining units with electronic ignition systems compared to standing pilot lights. Additionally, several manufacturers suggested that electronic ignition systems are not as well suited to cold climates, where standing pilot lights may help to maintain buoyancy through the flue and to prevent condensation from building up on glass.
In the emissions analysis, DOE estimated the reduction in emissions of carbon dioxide (CO
Today's proposed standard would reduce use of fuel at the site and slightly increase electricity use. DOE accounted for the associated reduction in site emissions and the upstream emissions associated with natural gas use, which include fugitive emissions. DOE also estimated the change in power sector emissions and the upstream emissions associated with electricity generation.
DOE primarily conducted the emissions analysis using emissions factors for CO
For CH
EIA prepares the
Because the on-site operation of gas hearth products requires use of fossil fuels and results in emissions of CO
SO
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, the increase in electricity demand associated with the considered hearth product standard would be expected to slightly increase Hg emissions. DOE estimated mercury emissions using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
For today's NOPR, DOE is relying on a set of values for the social cost of carbon (SCC) that was developed by a Federal interagency process. A summary of the basis for these values is provided below, and a more detailed description of the methodologies used is provided as an appendix to chapter 14 of the NOPR TSD.
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of carbon dioxide. A domestic SCC value is meant to reflect the value of damages in the United States resulting from a unit change in carbon dioxide emissions, while a global SCC value is meant to reflect the value of damages worldwide.
Under section 1(b)(6) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), agencies must, to the extent permitted by law, “assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed the SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of carbon dioxide emissions, the analyst faces a number of challenges. A recent report from the National Research Council
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing carbon dioxide emissions. The agency can estimate the benefits from reduced (or costs from increased) emissions in any future year by multiplying the change in emissions in that year by the SCC value appropriate for that year. The net present value of the benefits can then be calculated by multiplying each of these future benefits by an appropriate discount factor and summing across all affected years.
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing carbon dioxide emissions. To ensure consistency in how benefits are evaluated across agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
After the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC: The FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and were used in the last assessment of the Intergovernmental Panel on Climate Change (IPCC). Each model was given equal weight in the SCC values that were developed.
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models, while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: Climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from three integrated assessment models, at discount rates of 2.5 percent, 3 percent, and 5 percent. The fourth set, which represents the 95th-percentile SCC estimate across all three models at a 3-percent discount rate, is included to represent higher-than-expected impacts from climate change further out in the tails of the SCC distribution. The values grow in real terms over time. Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects, although preference is given to consideration of the global benefits of reducing CO
The SCC values used for today's notice were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature. Table IV.6 shows the updated sets of SCC estimates from the 2013 interagency update
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report mentioned previously points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytical challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted previously, DOE has taken into account how the considered energy conservation standard would reduce site NO
DOE is evaluating appropriate monetization of avoided SO
The utility impact analysis estimates several effects on the power generation industry that would result from the adoption of new or amended energy conservation standards. In the utility impact analysis, DOE analyzes the changes in installed electrical capacity and generation that would result for each trial standard level. The analysis is based on published output from NEMS, which is a public domain, multi-sectored, partial equilibrium model of the U.S. energy sector. Each year, NEMS is updated to produce the
Employment impacts from new or amended energy conservation standards include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards; the MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, due to: (1) Reduced spending by end users on energy; (2) reduced spending on new energy supply by the utility industry; (3) increased consumer spending on the purchase of new products; and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly
For the standard considered in this NOPR, DOE estimated indirect national employment impacts using an input/output model of the U.S. economy called Impact of Sector Energy Technologies, Version 3.1.1 (ImSET).
For more details on the employment impact analysis, see chapter 16 of the NOPR TSD.
The following section addresses the results from DOE's analyses with respect to a potential energy conservation standard for hearth products. Additional details regarding the analyses conducted by DOE are contained in the publicly-available NOPR TSD supporting this notice.
DOE typically considers multiple TSLs for a standards rulemaking. However, the hearth products rulemaking is proposing a prescriptive standard that would disallow the use of continuously-burning pilots, thereby largely eliminating the standby mode energy consumption of these products. The analysis is considering an established alternative to a standing pilot, which is an intermittent pilot. Other options that are present in other combustion appliances, such as hot surface ignition, are virtually non-existent in the hearth product market primarily due to the increased cost and additional engineering challenges. Therefore, hearth products have only one TSL, which reflects a standard that would disallow the use of a standing pilot. For the purposes of this analysis, TSL1 assumes that all covered hearth products would use an intermittent pilot (see Table V.1).
DOE analyzed the economic impacts of the proposed rule on hearth products consumers by looking at the effect on the LCC and the PBP. DOE also examined the impacts of potential standards on consumer subgroups. These analyses are discussed below.
In general, higher-efficiency products affect consumers in two ways: (1) Purchase price typically increases, and (2) annual operating costs typically decrease. Inputs used for calculating the LCC and PBP include total installed costs (
Table V.2 shows the LCC and PBP results for the considered TSL. The simple payback is measured relative to the baseline product, and reflects the number of years it would take for the consumer to recover the increased costs of higher-efficiency products as a result of operating cost savings. The PBP is an economic benefit-cost measure that uses benefits and costs without discounting. Table V.3 shows the LCC savings relative to the base case in the compliance year. Additionally, 23 percent of consumers experience net cost because their standing pilot lights have relatively low hours of operation, and thus achieve modest energy savings from using an intermittent pilot ignition.
In the consumer subgroup analysis, DOE estimated the impacts of the considered standard on senior-only households. The average LCC savings and simple PBPs for senior-only households are shown in Table V.4. The LCC savings are somewhat lower for the senior-only subgroup. Chapter 11 of the NOPR TSD presents detailed results of the consumer subgroup analysis.
As discussed in section III.G.2, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. Accordingly, DOE calculated a rebuttable-presumption PBP for the proposed hearth products standard based on the average energy use and costs calculated in the LCC analysis. DOE routinely conducts an economic analysis that considers the full range of impacts to the consumer, manufacturer, Nation, and environment, as required by EPCA under 42 U.S.C. 6295(o)(2)(B)(i). The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level, thereby supporting or rebutting the results of any preliminary determination of economic justification. Table V.5 shows the rebuttable-presumption PBP for the considered TSL for hearth products.
DOE performed a manufacturer impact analysis (MIA) to estimate the impact of an energy conservation standard on manufacturers of gas hearth products. The following section describes the expected impacts on manufacturers of a ban on standing pilot lights. Chapter 12 of the NOPR TSD explains the analysis in further detail.
Table V.6 and Table V.7 depict a range of estimated financial impacts (represented by changes in industry net present value, or INPV) of an energy conservation standard on manufacturers of gas hearth products, as well as the conversion costs that DOE expects manufacturers would incur to comply with the standard.
As discussed in section IV.J.2, DOE modeled two different markup scenarios to evaluate the range of cash flow impacts on the gas hearth industry: (1) The preservation of gross margin percentage markup scenario; and (2) the preservation of per-unit operating profit markup scenario. Each of these scenarios is discussed immediately below.
To assess the less severe end of the range of potential impacts, DOE modeled a preservation of gross margin percentage markup scenario, in which a uniform “gross margin percentage” markup is applied. In this scenario, DOE assumed that a manufacturer's absolute dollar markup would increase as production costs increase in the standards case.
To assess the more severe end of the range of potential impacts, DOE modeled the preservation of per-unit operating profit markup scenario, which reflects manufacturer concerns surrounding their inability to maintain margins as manufacturing production costs increase to comply with an energy conservation standard. In this scenario, as manufacturers incur higher costs of goods sold and make the investments necessary to produce new standards-compliant products, their percentage markup decreases. Operating profit does not change in absolute dollars but decreases as a percentage of revenue.
As noted in the MIA methodology discussion (see section IV.J.2), in addition to markup scenarios, the MPC, shipments, and conversion cost assumptions also affect INPV results.
Each of the modeled scenarios results in a unique set of cash flows and corresponding industry values under an energy conservation standard. In the following discussion, the INPV results refer to the difference in industry value between the base case and the standards case that results from the sum of discounted cash flows from the base year 2014 through 2050, the end of the analysis period. To provide perspective on the short-run cash flow impact, DOE includes in the discussion of results a comparison of free cash flow between the base case and the standards case in the year before the standard would take effect. This figure provides an understanding of the magnitude of the required conversion costs relative to the cash flow generated by the industry in the base case.
Table V.6 presents estimated financial impacts under the preservation of gross margin percentage markup scenario, and
DOE estimates the impacts of an energy conservation standard on INPV to range from −$3.3 million to $0.5 million, or a change of −2.6 percent to 0.4 percent. Industry free cash flow is estimated to decrease by $2.6 million, or a change of −24.0 percent compared to the base-case value of $10.9 million in the year before the compliance date (2020).
The capital and product conversion costs required to bring non-compliant models into compliance with standards drive the lower-bound negative INPV results at this level. To bring all non-compliant products into compliance, DOE estimates total industry conversion costs of $8.7 million. This estimate assumes that all non-compliant models (
During interviews, some manufacturers expressed concern that an energy conservation standard could pose a significant conversion cost burden with regard to labeling requirements. Under Canadian law, manufacturers must test and label gas fireplaces, stoves, and inserts with a fireplace efficiency (FE) rating. If a Federal energy conservation standard mandated an alternative efficiency metric for hearth products (
Beyond conversion costs, the change in MPCs also impact manufacturer financials. The cost to manufacturers of producing equipment with electronic ignition systems tends to be greater than the cost of producing equipment with standing pilot lights. A higher per-unit manufacturer production cost could, in turn, result in a higher per-unit retail price to the end user. In interviews, manufacturers expressed concerned that higher prices could lead to a change in industry shipments. The increase in MPC and the change in pricing to the manufacturer's first customer are reflected in the GRIM and in the INPV results. Shipments used in the GRIM are consistent with the Shipments Analysis, presented in section IV.G, which includes assumptions regarding price elasticity of demand.
DOE requests feedback on the expected total conversion costs for the industry. This is identified as Issue 20 in section VII.E, “Issues on Which DOE Seeks Comment.”
To quantitatively assess the potential impacts of energy conservation standards on direct employment in the gas hearth industry, DOE used the GRIM to estimate the domestic labor expenditures and number of employees in the base case and the standards case from 2014 through 2050. DOE used statistical data from the U.S. Census Bureau's 2011 Annual Survey of Manufacturers,
The total labor expenditures in the GRIM were then converted to domestic production employment levels by dividing production labor expenditures by the annual payment per production worker (production worker hours times the labor rate found in the U.S. Census Bureau's 2011 Annual Survey of Manufacturers). The production worker estimates in this section only cover workers up to the line-supervisor level who are directly involved in fabricating and assembling a product within an original equipment manufacturer (OEM) facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this rulemaking. The direct employment impacts calculated represent a range of potential changes in the number of production workers resulting from an energy conservation standard for hearth products, as compared to the base case.
To estimate an upper bound to employment change, DOE assumes all domestic manufacturers would continue producing the same scope of covered products in the U.S. and would not move production to foreign countries. To estimate a lower bound to employment, DOE assumes manufacturers would not redesign any non-compliant models and that there would be a proportionate loss of production employment.
Table V.8 shows the estimated range of impacts of a potential energy conservation standard on U.S. production workers of gas hearth products. In the base case, DOE estimates that the gas hearth industry would employ 1,565 domestic production workers in 2021, the first full year of compliance. DOE estimates that 86 percent of gas hearth products sold in the United States are manufactured domestically.
The less severe end of the range of potential employment impacts estimates a loss of 51 domestic production jobs in 2021 in the standards case. This assumes manufacturers would continue to produce the same scope of covered products within the United States. However, because the shipment model predicts a decline in shipment volumes under an energy conservation standard, DOE estimates a related reduction in labor inputs and employment.
The more severe end of the range represents the maximum decrease in total number of U.S. production workers that could be expected to result from an energy conservation standard. For the hearths industry, DOE assumed a worst-case scenario in which all products sold with standing pilot lights in the base case would be eliminated in the standards case and would not be replaced by any additional sales of compliant products. DOE then assumed industry labor requirements would shrink in proportion to lost sales volumes. The NIA shipments analysis forecasts that 58 percent of base-case shipments would consist of units with standing pilot lights in 2021. Based on the worst-case scenario assumptions above, DOE modeled a 58-percent decline in direct production employment. As a result, DOE estimates a loss of up to 908 domestic production jobs in 2021 resulting from a design standard that eliminates standing pilot lights.
This conclusion is independent of any conclusions regarding indirect employment impacts in the broader United States economy, which are documented in chapter 15 of the NOPR TSD.
DOE requests comment on the portion of the industry's hearths production consisting of units equipped with standing pilot lights and on potential direct employment impacts resulting from a requirement for the elimination of standing pilot lights. This is identified as Issue 21 in section VII.E, “Issues on Which DOE Seeks Comment.”
According to gas hearth manufacturers interviewed, a requirement eliminating standing pilot lights would not likely constrain manufacturing production capacity. Converting a gas hearth product's ignition system from a standing pilot light to an electronic ignition system is primarily a matter of purchasing and assembling different ignition system components. While this may entail higher costs for purchased parts and changes in assembly, it is not likely to impede manufacturers' capacity to continue producing gas hearth equipment in line with demand. Moreover, several manufacturers stated that the higher costs of producing equipment with electronic ignition systems could lead to a decline in demand, potentially leaving them with excess production capacity. Accordingly, DOE does not believe manufacturers will face capacity constraints as a result of today's proposed standard.
As discussed above, using average cost assumptions to develop an industry cash flow estimate is not adequate for assessing differential impacts among subgroups of manufacturers. Small manufacturers, niche players, or manufacturers exhibiting a cost structure that differs largely from the industry average could be affected disproportionately. For the hearth products industry, DOE used the results of the industry characterization to group manufacturers exhibiting similar characteristics. Specifically, DOE identified and separately evaluated the impacts of an energy conservation standard on two subgroups of manufacturers: (1) Manufacturers of gas log sets and (2) small business manufacturers.
During interviews, multiple manufacturers commented that gas log sets represent a distinct market segment within the gas hearth industry. These manufacturers indicated that gas log sets serve a different market niche and face different space constraints than other gas hearth products. Additionally, gas log sets often sell at lower prices than
Gas log sets are typically designed for use in existing wood-burning fireplaces. During interviews, manufacturers of gas log sets stated that unlike other gas hearth products, gas log sets compete with wood, coal, and wood/wax logs. These alternatives are typically inexpensive to purchase, such that consumers could feasibly substitute away from gas log sets and toward wood and/or wood/wax logs if an energy conservation standard leads to higher prices. According to these manufacturers, if design constraints specific to gas log sets cause an energy conservation standard to alter product aesthetics, it could further drive consumer product-switching.
Because gas log sets are designed to fit within existing wood-burning fireplaces, manufacturers indicated that design options for gas log sets are constrained by the geometric configurations of pre-existing fireplaces. Manufacturers stated that electronic ignition systems take up more space than standing pilot lights and that accommodating electronic ignition systems inside existing fireplaces could, in turn, reduce the size of the gas log sets consumers could purchase for their fireplaces. Manufacturers also indicated that electronic ignition system components can be difficult to conceal within a gas log set's design. Unlike other gas hearth products, gas log sets are not sold as part of a packaged unit, leaving manufacturers with limited options for obscuring the gas valve, pilot assembly, control module, wiring, and other components that make up an electronic ignition system. As a result, these components may be more exposed when used with gas log sets compared to other gas hearth products. Manufacturers also stated that electric outlets may not be situated in close enough proximity to wood-burning fireplaces to enable ready installation of units with electronic ignition systems. In such cases, the need for extension cords could impact the aesthetic appeal of products. Alternatively, hiring an electrician could raise installation costs and potentially deter price-sensitive consumers.
Alongside aesthetic impacts, manufacturers expressed concern regarding the cost implications of a potential ban on standing pilot lights. As discussed previously, purchasing components for electronic ignition systems typically costs manufacturers more than purchasing components for standing pilot lights. Higher manufacturing costs, in turn, lead to higher retail prices. To estimate the potential difference in cost resulting from a requirement eliminating standing pilot lights, DOE modeled the manufacturer production costs (MPCs) for both vented and unvented gas log sets using both standing pilot lights and electronic ignition systems. DOE similarly modeled MPCs for other categories of gas hearth products. Table V.9 presents the relative increase in MPC for products manufactured with electronic ignition systems as opposed to standing pilot lights. See chapter 5 of the TSD for a more detailed discussion of how MPCs were calculated.
As the results above indicate, DOE estimates that the cost of switching from a standing pilot light to an electronic ignition system could disproportionately impact gas log set manufacturers. These results are driven by two primary factors. First, the results are based on the assumption that gas log sets use standing pilot lights with manual gas valves, which are smaller and less expensive than standing pilot lights with millivolt gas valves. Under this assumption, the higher cost of purchasing electronic ignition system components would represent a more significant expenditure in absolute dollars for manufacturers of gas log sets using manual standing pilot lights relative to manufacturers of other hearth products (
For the small business subgroup analysis, DOE applied the small business size standards published by the Small Business Administration (SBA) to determine whether a company is considered a small business. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. To be categorized as a small business, a gas hearth product manufacturer and its affiliates may employ a maximum of 500 employees. This 500-employee threshold includes all employees in a business's parent company and any other subsidiaries and applies to all hearth products, categorized respectively under North American Industry Classification System (NAICS) code 333414, “Heating Equipment (Except Warm Air Furnaces) Manufacturing” and NAICS code 335228, “Other Major Household Appliance Manufacturing.” Based on this classification, DOE identified at least 66 manufacturers that qualify as domestic small businesses.
Small business concerns surrounding the proposed standard centered on issues of purchasing power and economies of scale. During interviews, small manufacturers expressed concern regarding the impact of eliminating standing pilot lights on their ability to compete with larger manufacturers. Because large manufacturers often produce at higher volumes, they may be able to source components for electronic ignition systems at lower per-unit prices than small manufacturers that produce at lower volumes. If the per-unit production costs increase more for small manufacturers than for large manufacturers, and if small manufacturers are not able to pass costs through to price-sensitive consumers, they could potentially face reduced markups and profits, as well as a decline in market share. The impacts on small business manufacturers are discussed in greater detail in the regulatory flexibility analysis, in section VI.B of this notice and in chapter 12 of the NOPR TSD.
While any one regulation may not impose a significant burden on manufacturers, the combined effects of several recent impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. Multiple regulations affecting the same manufacturer can strain profits and can lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
For the cumulative regulatory burden analysis, DOE looks at other product-specific Federal regulations that could affect gas hearth product manufacturers and that will take effect approximately three years before or after the 2021 compliance date of the proposed energy conservation standard. In interviews, manufacturers cited a Consumer Product Safety Commission regulation requiring barrier screens on gas hearth products. However, this requirement is set to take effect in January 2015 and, therefore, is not considered in this analysis. DOE did not identify any other Federally-mandated product-specific regulations that will take effect in the three years before or after the 2021 compliance date for this rulemaking and, therefore, has not presented any other regulations in this analysis of cumulative regulatory burden.
DOE requests comment on product-specific regulations that take effect between 2018 and 2024 that would contribute to manufacturers' cumulative regulatory burden. DOE requests information identifying the specific regulations, as well as data quantifying the associated cost burden on manufacturers. This is identified as Issue 22 in section VII.E, “Issues on Which DOE Seeks Comment.”
The shipments projections are a key input to the NIA. The base case forecast shows shipments of the covered product growing from approximately 978,000 in 2021 to 980,000 in 2050.
DOE projected energy savings for hearth products purchased in the 30-year period that begins in the first full year of anticipated compliance with the proposed standard (2021–2050). The savings are measured over the entire lifetime of products purchased in the 30-year period. DOE quantified the energy savings attributable to the considered TSL as the difference in energy consumption between the standards case and the base case. Table V.10 presents the estimated primary and FFC energy savings. The approach for estimating national energy savings is further described in section IV.H.1.
OMB Circular A–4
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSL considered for hearth products. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned nine-year analytical period are presented in Table V.13. The impacts are counted over the lifetime of products purchased in 2021–2029. As mentioned previously, such results are presented for informational purposes only and are not indicative of any change in DOE's analytical methodology or decision criteria.
The results presented here reflect the use of a flat trend for the price of hearth products over the analysis period (see section IV.F.1).
DOE expects that energy conservation standards for heath products would reduce energy costs for consumers, with the resulting net savings being redirected to other forms of economic activity. Those shifts in spending and economic activity could affect the demand for labor. As described in section IV.N, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSL that DOE considered in this rulemaking. DOE understands that there are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term time frames (2021 to 2026), where these uncertainties are reduced.
The results suggest that the proposed standard would likely have a negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the NOPR TSD presents detailed results regarding indirect employment impacts.
DOE has tentatively concluded that the standard it is proposing in this NOPR would not lessen the utility or performance of hearth products.
DOE considered any lessening of competition that is likely to result from the proposed standard. The Attorney General determines the impact, if any, of any lessening of competition likely to
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production and use. Energy savings from energy conservation standards for hearth products covered by this NOPR may also produce environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases. Table V.14 provides DOE's estimate of cumulative emissions reductions projected to result from the TSL considered. The table includes site, power sector, and upstream emissions. The emissions were calculated using the multipliers discussed in section IV.K. DOE reports annual emissions reductions in chapter 13 of the NOPR TSD.
As part of the analysis for this proposed rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.15 presents the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated a range for the cumulative monetary value of the economic benefits associated with NO
DOE seeks comment on the approach for estimating monetary benefits associated with emissions reductions. This is identified as issue 23 in section VII.E, “Issues on Which DOE Seeks Comment.”
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) No other factors were considered in this analysis.
The NPV of the monetized benefits associated with emissions reductions can be viewed as a complement to the NPV of the consumer savings calculated for the new TSL considered in this rulemaking. Table V.17 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
Although adding the value of consumer savings to the values of emission reductions provides a valuable perspective, two issues should be considered. First, the national operating cost savings are domestic U.S. consumer monetary savings that occur as a result of market transactions, while the value of CO
When considering proposed standards, the new or amended energy conservation standards that DOE adopts for any type (or class) of covered product, including hearth products, must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) As discussed previously, in determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also “result in significant conservation of energy.” (42 U.S.C. 6295(o)(3)(B))
The tables in this section summarize the quantitative analytical results for the considered TSL, based on the assumptions and methodology discussed herein. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard (see section V.B.1.b), and impacts on employment. DOE discusses the impacts on direct employment in hearth products manufacturing in section V.B.2.b, and discusses the indirect employment impacts in chapter 16 of the NOPR TSD.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of: (1) A lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (for example, renter versus owner or builder versus purchaser). Other literature indicates that with less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off at a higher than expected rate between current consumption and uncertain future energy cost savings. This undervaluation suggests that regulation that promotes energy efficiency can produce significant net private gains (as well as producing social gains by, for example, reducing pollution).
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego a purchase of a product in the standards case, this decreases sales for product manufacturers and the cost to manufacturers is included in the MIA. Second, DOE accounts for energy savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of changes in the volume of product purchases in chapter 9 of the NOPR TSD. DOE's current analysis does not explicitly control for heterogeneity in consumer preferences, preferences across subcategories of products or specific features, or consumer price
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance standards and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V.18 and Table V.19 summarize the quantitative impacts estimated for the potential standard for hearth products. The national impacts are measured over the lifetime of hearth products purchased in the 30-year period that begins in the year of compliance with the considered standard (2021–2050). The energy savings, emissions reductions, and value of emissions reductions refer to FFC results.
At TSL 1, DOE estimates there would be a savings of 0.69 quads of energy, an amount DOE considers significant. TSL 1 has an estimated NPV of consumer benefit of $1.03 billion using a 7-percent discount rate, and $3.12 billion using a 3-percent discount rate.
The cumulative emissions reductions at TSL 1 are 37.0 million metric tons (Mt)
At TSL 1, the average LCC savings are $165. The simple PBP is 2.9 years. The share of consumers experiencing a net LCC cost is 23 percent.
At TSL 1, the projected change in INPV ranges from a decrease of $3.3 million to an increase of $0.5 million. If the decrease of $.3.3 million were to occur, TSL 1 could result in a net loss of up to 2.6 percent of INPV for manufacturers of covered hearth products.
The Secretary tentatively concludes that, at TSL 1 for hearth products, the benefits of energy savings, positive NPV of total consumer benefits at a 3-percent and 7-percent discount rate, average consumer LCC savings, emission reductions, and the estimated monetary value of the emissions reductions outweigh the reduction in industry value and the net LCC cost for a small number of consumers. Accordingly, the Secretary of Energy has tentatively concluded that TSL 1 would save a significant amount of energy and is economically justified. Based upon the above considerations, DOE proposes to adopt as an energy conservation standard the prescriptive design requirement that would disallow the use of continuously-burning pilots (
The benefits and costs of today's proposed standard can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) the annualized national economic value (expressed in 2013$) of the benefits from operating products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of
Although combining the values of operating savings and CO
Estimates of annualized benefits and costs of the proposed standards for hearth products are shown in Table V.20. The results under the primary estimate are as follows. Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.5/t in 2015), the estimated cost of the hearth products standards proposed in this rule is $61.2 million per year in increased equipment costs, while the estimated benefits are $251 million per year in reduced equipment operating costs, $67 million per year in CO
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems these proposed standards address are as follows:
(1) A lack of consumer information and difficulties in analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases, the benefits of more-efficient products are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the product purchase decision is made by a building contractor or building owner who does not pay the energy costs.
(3) There are external benefits resulting from improved energy efficiency of hearth products that are not captured by the users of such products. These benefits include externalities related to public health, environmental protection, and national security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming.
In addition, DOE has determined that this regulatory action is a “significant regulatory action” under section 3(f)(1) of Executive Order 12866. Accordingly, section 6(a)(3) of the Executive Order requires that DOE prepare a regulatory impact analysis (RIA) on this rule and that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) review this rule. DOE presented to OIRA for review the draft rule and other documents prepared for this rulemaking, including the RIA, and has included these documents in the rulemaking record. The assessments prepared pursuant to Executive Order 12866 can be found in the technical support document for this rulemaking.
DOE has also reviewed this regulation pursuant to Executive Order 13563. 76 FR 3281 (Jan. 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, 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 specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of gas hearth products, the Small Business Administration (SBA) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (NAICS) code and industry description and are available at
DOE reviewed the potential standard levels considered in today's NOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. To better assess the potential impacts of this rulemaking on small entities, DOE conducted a more focused inquiry of the companies that could be small business manufacturers of products covered by this rulemaking. During its market survey, DOE used publicly-available information to identify potential small manufacturers. DOE's research involved industry trade association membership directories (
DOE identified 90 potential manufacturers of gas hearth products sold in the U.S. that would be affected by today's proposal. Of these, DOE identified 66 as domestic small business manufacturers. DOE contacted a subset of small businesses to invite them to take part in a manufacturer impact analysis interview. Of 25 small businesses contacted, DOE was able to reach and discuss potential standards with five of those entities. DOE also obtained information about small businesses and potential impacts on small businesses while interviewing large manufacturers.
In interviews, small manufacturers expressed concern regarding the impact of disallowing standing pilot lights on their ability to compete with larger manufacturers. Manufacturers stated that gas hearth products with electronic ignition systems cost more to produce than gas hearth products with standing pilot lights, as the components purchased for electronic ignition systems tend to be more expensive. Since large manufacturers often produce at higher volumes, they may be able to source components at lower per-unit prices than small manufacturers that produce at lower volumes. Because small manufacturers may not benefit from the same economies of scale as large manufacturers, an energy conservation standard disallowing standing pilot lights could disproportionately impact their production costs and, in turn, the prices at which they sell their products. This anticipated change in manufacturer production costs (MPCs) drove small manufacturer concerns surrounding the impact of an energy conservation standard on their ability to remain competitive in the gas hearth market.
To evaluate small manufacturers' concerns regarding the competitive implications of disallowing standing pilot lights, DOE modeled the difference in cost small manufacturers might face when sourcing components at lower volumes. Due to limited available information on the relative sales volumes of small and large manufacturers, DOE selected volumes of 1,000 units (used to represent small manufacturers) and 10,000 units (used to represent large manufacturers) for each product group analyzed. DOE developed its analysis based on the engineering teardown analysis and cost model, as well as manufacturer feedback on the costs of electronic ignition systems.
The table below presents the estimated added per-unit cost of an electronic ignition system compared to a standing pilot system at the two representative production volumes modeled. As the results indicate, manufacturers would likely pay less per unit when producing 10,000 units versus 1,000 units. Estimated costs would be expected to decline further as production volumes climb higher.
DOE's analysis suggests that disallowing standing pilot lights would increase the per-unit MPCs of gas hearth products by a greater amount for small-volume producers than for large-volume producers. Higher MPCs, in turn, typically lead to higher end-user purchase prices. If products manufactured by small businesses cannot compete with products manufactured by large businesses at lower cost, small businesses could potentially experience a decline in profits and/or choose to exit the market.
DOE recognizes that larger manufacturers may have a competitive advantage due to their size and ability to source purchased parts at lower cost. If the per-unit cost of products increases more for small manufacturers than for large manufacturers, and if small manufacturers are not able to pass costs through to price-sensitive consumers, they could potentially face reduced markups and profits, as well as a decline in market share. Because the proposed standard could cause competitive concerns for small manufacturers, DOE cannot certify that the proposed standard would not have a significant impact on a substantial number of small businesses.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being considered today.
DOE is required by EPCA to establish standards that achieve the maximum improvement in energy efficiency that is
DOE continues to seek input from small businesses that would be affected by this rulemaking and will consider comments received in the development of any final rule.
Manufacturers of hearth products must certify to DOE that their products comply with any applicable energy conservation standards. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment (76 FR 12422 (March 7, 2011)) and plans to establish such regulations for hearth products pending the outcome of the proposed determination of coverage and energy conservation standards rulemakings. The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). DOE will seek OMB approval under the PRA in the rulemaking that establishes the certification requirements for hearth products, which will be conducted subsequent to the current proceeding if the proposed determination is ultimately positive and energy conservation standards are ultimately adopted.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the proposed rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and Appendix B, B(1)–(5). The proposed rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX determination for this proposed rule is available at
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it would 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to
Although this proposed rule, which proposes energy conservation standards for hearth products, does not contain a Federal intergovernmental mandate, it may require expenditures of $100 million or more on the private sector. Specifically, the proposed rule would likely result in a final rule that could require expenditures of $100 million or more, including: (1) Investment in research and development and in capital expenditures by residential hearth product manufacturers in the years between the final rule and the compliance date for the new standards, and (2) incremental additional expenditures by consumers to purchase higher-efficiency hearth products, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. Pursuant to 42 U.S.C. 6292(a)(20) and (b)(1) and 42 U.S.C. 6295(l)(1)–(2) and (o), this proposed rule would establish amended energy conservation standards for hearth products that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in the “Regulatory Impact Analysis” section of the TSD for this proposed rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 15, 1988), DOE has determined that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which would adopt energy conservation standards for hearth products, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions.”
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report,” dated February 2007, has been disseminated and is available at the following Web site:
The time, date, and location of the public meeting are listed in the
In addition, you can attend the public meeting via webinar. Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Any person who has an interest in the topics addressed in this notice, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting. Such persons may hand-deliver requests to speak to the address shown in the
DOE requests persons scheduled to make an oral presentation to submit an advance copy of their statements at least one week before the public meeting. DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Program. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the public meeting, interested parties may submit further comments on the proceedings, as well as on any aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case, it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE seeks comment on the proposed definition for hearth products found in the December 2013 NOPD (78 FR 79638) and the range of products covered by the proposed rule if this definition were applied in the final rulemaking. DOE requests comment on which products would fall into each of the product groups as currently defined (1. vented fireplaces/stoves/inserts, 2. unvented fireplaces/stoves, inserts, 3. vented gas log sets, 4. unvented gas log sets, and 5. outdoor) and whether additional clarifying criteria should be added to the definition to cover intended products. DOE requests comment on which hearth products that are “gas appliances that simulate a solid-fueled fireplace or presents a flame pattern” may by the proposed definition be grouped into the hearth product category, but may warrant a different design standard due to such factors as utility of the feature to users. (See section III.A.)
2. DOE seeks input on the assumption that should standing pilot ignitions be disallowed, electronic intermittent ignitions would provide the same level of safety as a standing pilot and whether a standing pilot provides a means for ensuring that gas is lit prior to opening the gas valve and ensuring that oxygen levels in a the room remain at a safe levels prior to the main burner ignition. DOE request comment on whether there are any ANSI safety standard certification, building code, or other industry safety standard that may preclude a manufacturer from selling a particular hearth product with an electronic intermittent ignition. (See section III.B.)
3. DOE seeks comment on its tentative conclusions regarding hearth product definitions and categorizations as they pertain to active mode energy use. (See section III.C and chapter 3 of the TSD.)
4. DOE seeks comment on its screening analysis including any potential impacts on product utility or availability. (See section III.G.1.d and chapter 4 of the TSD.)
5. DOE seeks comment on its assumptions regarding the electrical energy consumption of the ignition module for hearth products. (See section III.I and chapter 7 of the TSD).
6. DOE seeks comment on its list of identified technologies for reducing the fuel consumption of hearth products. (See section IV.A.3 and chapter 3 of the TSD.)
7. DOE seeks comment on its general engineering analysis approach for hearth products. (See section IV.C and chapter 5 of the TSD.)
8. DOE seeks comment on the availability and applicability of intermittent pilot ignition components for hearth products. (See section IV.C.1 and chapter 5 of the TSD.)
9. DOE requests comment on its assumption that ignition component costs for vented fireplaces, inserts, and stoves are equivalent. (See section IV.C.1 and chapter 5 of the TSD.)
10. DOE requests comment on the derived manufacturer production costs and markups. (See sections IV.C.3.e and IV.C.4 and chapter 5 of the TSD.)
11. DOE seeks input on the representative input capacities (kBtu/h) used to calculate the fuel used by the standing pilot for each of the five hearth product groups identified in the proposal and discussed in Chapter 7 of the TSD. In particular, the agency seeks input on whether the RECS 2009 annual space heating energy consumption numbers for vented and unvented fireplaces is representative of all hearth products and any data that would be helpful in estimating the energy consumption for the hearth product groups identified. DOE also seeks comment
12. DOE requests comment on the assumed pilot light usage, specifically the percentages of consumers who operate their hearth product standing pilots year round, for only the heating season, only when operating the unit, the treatment of LPG units, and the treatment of heat input into the space by the standing pilot. (See section IV.E and chapter 7 of the TSD.)
13. DOE requests comment on the assumption to not apply a trend to its manufacturer selling price, as well as any information that would support the use of alternate assumptions. (See section IV.F.1 and chapter 8 of the TSD.)
14. DOE requests comment on installation and retrofit assumptions regarding electrical connections and grounding. (See section IV.F.1 and chapter 8 of the TSD.)
15. DOE requests comment on intermittent pilot ignition module repair frequency and cost components applied in the life-cycle cost and payback period analysis. The agency requests input on the use of $142.89 as the bare material cost of repair of the intermittent pilot compared the bare material cost of a standing pilot of $43.72. In addition, the agency requests comment on the labor hours associated with the repair of both the standing pilot and intermittent pilot, which were both determined to be 1.50 labor hours as referenced in Section 8.2.3.2 of the TSD. DOE also requests comment on whether consumers may choose to replace the entire product as opposed to repair the failed ignition device and at what price point consumers would make that decision and for which hearth products. (See section IV.F.2.c and chapter 8 of the TSD.)
16. DOE requests comment on lifetime assumptions applied in the life-cycle cost and payback period analysis where DOE assumes the minimum lifetime of both the hearth product and ignition system to be 5 years and 1 year, respectively and that for purposes of the life-cycle cost analysis that any repair costs would be free to the consumer during this warranty period. In addition, DOE requests comment on the product lifetime distribution for hearth products that are average are assumed to be 15 years and for hearth product ignition systems are assumed to be 7.3 years as laid out in Section 8.2.3.3 of the TSD. DOE requests input on lifetime for products identified in the five different hearth product groups (vented fireplaces, unvented fireplaces, vented log sets, unvented log sets, and outdoor) that may inform the lifetime distribution analysis. (See section IV.F.2.d and chapter 8 of the TSD.)
17. DOE requests comment on the estimated base-case efficiency distribution. (See section IV.F.2.f and chapter 8 of the TSD.)
18. DOE requests comment on its assumption that switching from gas to electric hearth products due to the imposition of the design standard would be negligible. (See section IV.G and chapter 9 of the TSD.)
19. DOE requests comment on DOE's methodology to correlate housing starts with hearth products shipments. In addition, DOE requests comment on the assumed three-to-one ratio between non-HPBA and HPBA shipments used to develop the total patio heater shipments assumptions. DOE also requests comment on the assumed fraction of match-lit shipments for each hearth product group and the use of the midpoint of the HPBA range as representative of the market shares of match lit units for each product group as represented in Table 9.3.2 of the TSD. DOE also requests comment on the assumed 0.754 ratio of housing starts to hearth products shipments as discussed in section 9.5 of the TSD and what percentage of these hearth products are connected to natural gas pipelines versus homeowners' propane storage tanks. (See section IV.G and chapter 9 of the TSD.)
20. DOE requests comment on expected industry capital and product conversion costs. For the capital conversion costs, DOE requests comment on the determination that the design standard would primarily entail a component swap, in which manufacturers would assemble hearth products using a different set of purchased parts for the ignition system and that re-tooling or reconfiguring production facilities likely would be limited. In particular, DOE requests comment on the assigned nominal capital conversion cost per manufacturer, equivalent to $10,000, to account for any one-time capital investments and calculated industry conversion costs of $0.9 million as discussed in Chapter 12.4.6 of the TSD. For the product conversion costs, DOE requests comment on the conversion cost estimates on the assumption that manufacturers would incur limited costs related to R&D, testing and certification, and development of marketing materials in order to bring into compliance models not currently offered with the option of an electronic ignition system. In particular, DOE requests comment on the assumed product conversion cost of $10,000 in fixed costs per model to arrive at the total industry product conversion costs of $7.8 million. DOE also requests comment on the number of hearth product manufacturers who may need to invest in capital equipment, assumed to be 90 manufacturers, and the number of hearth product models, assumed to be 781 models, that may need model redesigns in order to comply with the proposed standards. (See section V.B.2 and chapter 12 of the TSD.)
21. DOE requests comment on potential impacts of an energy conservation standard on domestic production employment. (See section V.B.2 and chapter 12 of the TSD.)
22. DOE requests comment on product-specific regulations that take effect between 2018 and 2024 that would contribute to manufacturers' cumulative regulatory burden. DOE requests information identifying the specific regulations, as well as data quantifying the associated cost burden on manufacturers. (See section V.B.2 and chapter 12 of the TSD.)
23. DOE requests comment on the approach for estimating monetary benefits associated with emissions reductions. (See section V.B.6 and chapter 14 of the TSD.)
The Secretary of Energy has approved publication of today's notice of proposed rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
(z)
Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
The Administration for Children and Families (ACF) proposes to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations. This notice of proposed rulemaking (NPRM) builds on an earlier proposed rule, published January 11, 2008 that addressed the requirements for State title IV–E agencies to collect and report data to ACF on children who are in out-of-home care and in subsidized adoption or guardianship arrangements with the State and AFCARS penalty requirements of the Adoption Promotion Act of 2003. This NPRM proposes many of the same changes and additions as the earlier NPRM and includes several new modifications to address changes made by the Fostering Connections to Success and Increasing Adoptions Act of 2008, such as collecting and reporting data related to the title IV–E guardianship assistance program, sibling placement, the extension of title IV–E assistance to children age 18 or older, educational stability plans and transition plans for children in foster care and the inclusion of Tribal title IV–E agencies. Additionally, modifications were made to address new requirements in the Preventing Sex Trafficking and Strengthening Families Act, which was enacted on September 29, 2014 to include information on: Victims of sex trafficking, children in foster care who are pregnant or parenting, and children in non-foster family settings.
In order to be considered, we must receive written comments on this NPRM on or before April 10, 2015.
Interested persons are invited to submit written comments regarding this proposed rule via regular postal mail to Kathleen McHugh, Division of Policy, Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, 1250 Maryland Avenue SW., 8th Floor, Washington, DC 20024. Please be aware that mail sent to us may take an additional 3–4 days to process due to changes in mail handling resulting from the anthrax crisis of October 2001. If you choose to use an express, overnight or other special delivery method, please ensure first that they are able to deliver to the above address. You may also transmit comments electronically via the Internet at
Comments that concern information collection requirements must be sent to the Office of Management and Budget (OMB) at the address listed in the Paperwork Reduction Act (PRA) section of this preamble. A copy of these comments also may be sent to the Department representative listed above.
Kathleen McHugh, Children's Bureau, Administration on Children, Youth and Families, (202) 401–5789 or by email at
Executive Order 13563 requires that regulations be accessible, consistent, written in plain language, and easy to understand. This means that regulatory preambles for lengthy or complex rules (both proposed and final) must include executive summaries. Below is the executive summary for this AFCARS NPRM.
(a)
(b)
• The demographic characteristics of adopted and foster children and their parents;
• the status and characteristics of the foster care population;
• the number and characteristics of children entering and exiting foster care, children adopted and children placed in living arrangements outside of the responsible title IV–E agency;
• the extent and nature of assistance provided by government programs for foster care and adoption and the characteristics of the children that receive the assistance; and
• the number of foster children identified as sex trafficking victims before entering or while in foster care.
(a)
(b)
• For the out-of-home care data file, title IV–E agencies will report a combination of point-in-time information that's not likely to change (
• For the adoption and guardianship assistance data file, title IV–E agencies will report information that describe the circumstances of the child and adoptive family or guardians at a single point-in-time in the report period. This information is not likely to change over time.
(c)
• Timely plans to transition out of foster care and the frequency of caseworker visits;
• the child's educational level, educational stability and involvement with special education;
• existing and previous health, behavioral and mental health conditions, and information on the timeliness of health assessments;
• domestic and intercountry adoptions and prior adoptions and guardianships; and
• new elements to better track Tribal, State and Federal financial support of foster care, adoption and guardianships.
(d)
We have determined that the costs to title IV–E agencies as a result of this rule will not be significant. We estimate that costs will be approximately $24 million annually for AFCARS for the first five years of implementation, half of which ($12 million) we estimate will be reimbursed by the Federal government as allowable costs under title IV–E. Depending on the cost category and each agency's approved plans for title IV–E and cost allocation, they may claim allowable costs as Automated Child Welfare Information System costs at the 50 percent rate, administrative costs for the proper and efficient administration of the title IV–E plan at the 50 percent rate, or training of agency staff at the 75 percent rate. Many title IV–E agencies already collect the information proposed in this NPRM. Other existing data sets cannot yield similar information because AFCARS is the only national, comprehensive case-level data set on the incidence and experiences of children who are in foster care and/or achieve adoption or guardianship with the involvement of the State or Tribal title IV–E agency. Further, we are required by section 479 of the Act to establish and maintain such a data system, so other data sources could not meet our statutory mandate.
In 1982, the Department of Health and Human Services (HHS), through a grant to the American Public Human Services Association (formerly the American Public Welfare Association), implemented the Voluntary Cooperative Information System (VCIS) to collect aggregate information annually about children in foster care and special needs adoptions from State child welfare agencies. While some States reported data to VCIS, by 1986, Congress and other stakeholders recognized that there were a number of weaknesses in VCIS. Namely, VCIS was criticized for intermittent reporting by the States, the use of a variety of report periods, a lack of common definitions for data elements, a lack of timeliness of the data, poor data quality and the collection of aggregate data that had limited analytic utility.
As a result of these and other concerns, the President signed the Omnibus Budget Reconciliation Act of 1986 (Pub. L. 99–509) on October 21, 1986, which in part added section 479 to title IV–E of the Act. Section 479 of the Act describes the series of steps that HHS was required to take to establish a national data collection system for foster care and adoption. We were required to develop a system that avoids unnecessary diversion of resources from agencies responsible for adoption and foster care and assures that the data collected is reliable and consistent over time and across jurisdictions through the use of uniform definitions and methodologies. Furthermore, the law
On August 19, 1993, the President signed into law the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103–66). Public Law 103–66 provided State title IV–E agencies with the opportunity to obtain title IV–E funds to plan, design, develop and implement a Statewide Automated Child Welfare Information System (SACWIS). On December 22, 1993, ACF published a final rule to establish AFCARS and implement SACWIS. In the AFCARS final rule, we required State title IV–E agencies to submit certain data to us on a semi-annual basis about children in foster care and adoptions that involve the State title IV–E agency. The rule required State title IV–E agencies that chose to develop a SACWIS to ensure that their system collected the AFCARS data and reported the data to ACF. We also set forth a minimum set of data standards that each State title IV–E agency had to meet in order to be in compliance with the AFCARS requirements and not be assessed a penalty.
State title IV–E agencies were required to report the first AFCARS data to us for Federal fiscal fear (FFY) 1995. However, it was not until FFY 1998, when we implemented AFCARS financial penalties for a State title IV–E agency not submitting data or submitting data of poor quality that the data became stable enough for ACF and others to use for a wide variety of purposes.
On November 19, 1997, four years after SACWIS funding was made available, the President signed the Adoption and Safe Families Act of 1997 (Pub. L. 105–89), which required the use of AFCARS data for two specific activities the calculation of Adoption and Legal Guardianship Incentive Payments (section 473A of the Act) and the Child Welfare Outcomes Annual Report (section 479A of the Act). Since that time, data from AFCARS also has been used to provide samples for the current CFSRs and title IV–E reviews, develop outcome and performance measures for the current CFSRs and the Government Performance and Results Act (GPRA), calculate State allocations for the Chafee Foster Care Independence Program (section 477 of the Act), generate short- and long-term budget projections, conduct trend analyses for short- and long-term program planning and respond to requests for information from the Congress, other Federal agencies, States, media and the public about children in foster care and children being adopted.
While AFCARS data is used for many purposes, there are no penalties currently for non-compliant data submissions. Due to a settlement of several States' appeals of AFCARS penalties, ACF discontinued withholding Federal funds for a title IV–E agency's failure to comply with AFCARS requirements in January 2002 (see ACYF–CB–IM–02–03). However, on December 2, 2003 the President signed the Adoption Promotion Act of 2003 (Pub. L. 108–145), which required ACF to institute specific financial penalties for a State title IV–E agency's noncompliance with AFCARS requirements. We notified State title IV–E agencies in ACYF–CB–IM–04–04, issued February 17, 2004, that we would not assess penalties until we issued revised final AFCARS regulations.
Ten months after the publication of the 2008 Notice of Proposed Rule Making (hereafter referred to as the 2008 NPRM), on October 7, 2008 (73 FR 2082), the President signed into law the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub. L. 110–351). Public Law 110–351 amended title IV–E of the Act to create an option for title IV–E agencies to provide kinship guardianship assistance payments, to extend eligibility for title IV–E payments up to age 21, to de-link adoption assistance from Aid to Families with Dependent Children (AFDC) eligibility through an eight-year phase-in and to provide federally-recognized Indian Tribes and Tribal organizations or consortia with the option to operate a title IV–E program directly, among many other provisions. These recent statutory changes to the title IV–E program are significant and thus contributed to our decision to issue a new NPRM rather than proceed with a final rule based on the 2008 NPRM. We conducted additional consultation through a Request for Comment published in the
Public Law 110–351 also required HHS to issue an Interim Final Rule (IFR) implementing the inclusion of Tribal title IV–E agencies. We published the IFR on January 6, 2012 (77 FR 896), which defined “title IV–E agency” as the State or Tribal agency administering or supervising the administration of the title IV–B and title IV–E plans. The IFR also revised the regulations at 45 CFR 1355.40 and the appendices to part 1355 to apply the AFCARS requirements to all title IV–E agencies.
In September 2014, the President signed into law the Preventing Sex Trafficking and Strengthening Families Act (Pub. L. 113–183). Public Law 113–183 modified the AFCARS requirements in section 479 of the Act, the annual Child Welfare Outcomes Report in section 479A of the Act, and added several reports to Congress requiring the collection and reporting of certain information. This includes information on victims of sex trafficking, children in foster care who are pregnant or parenting, and children in foster care in non-foster family settings and the services they receive.
In the preamble to the AFCARS final regulation issued December 22, 1993, we indicated that we would revisit the regulations to assess how we may improve AFCARS (58 FR 67917). Prior to the publication of the 2008 NPRM, we analyzed the types of technical assistance requested by and provided to title IV–E agencies, our findings from AFCARS Assessment Reviews and reports from the past several years issued by the Government Accountability Office (GAO) and the Department's Office of the Inspector General (OIG) on AFCARS-related issues. We included in the 2008 NPRM an extensive discussion of the consultation process we conducted through a variety of focus groups and a
In the 2008 NPRM, we focused improvements on five general areas by restructuring the data to capture more information over time, expanding and clarifying the reporting populations, capturing greater detail on children in out-of-home care, improving the quality of data and eliminating unnecessary data and inefficiencies in the data submission process. Specifically, we proposed that AFCARS data support longitudinal data analysis by capturing comprehensive information on the child's experience in the title IV–E
We also proposed in the 2008 NPRM to improve AFCARS data quality in several ways by clarifying existing data element descriptions, strengthening the assessment and identification of errors within a title IV–E agency's data file, and developing cross-file checks to identify defaults and other faulty programming that resulted in skewed data across the title IV–E agency's entire data file. We proposed to implement penalties for title IV–E agencies that do not meet our data file and data quality standards for AFCARS consistent with section 474(f) of the Act. In addition, we proposed to eliminate features that are no longer useful such as removing the requirement that the title IV–E agency report summary adoption and foster care data files, merging most of the currently reported adoption information into the out-of-home care data file and removing outdated technical submission requirements from the regulation.
In response to the 2008 NPRM, we received comments from 77 State and local child welfare administrators, advocates, educators, researchers and members of the public. While many commenters supported the overall direction of the NPRM, they also had many specific areas of concern, which are detailed in the next section and throughout the NPRM. Most commenters expressed overwhelming support for the shift to longitudinal reporting on children entering, currently in and exiting foster care. Commenters also generally supported the idea that longitudinal data is more valuable and beneficial than current point-in-time data reporting for evaluating child welfare outcomes. However, several commenters expressed concerns about implementing a longitudinal methodology for AFCARS data with existing data systems and resources.
In response to the 2008 NPRM commenters expressed concern with our proposed expansion of the out-of-home care reporting population to include children who were under the placement and care responsibility of the title IV–E agency but whose only living arrangement was a juvenile justice facility. Commenters questioned how the title IV–E agency would obtain detailed information for AFCARS on the children in juvenile justice facilities. However, commenters did support collecting information on children in foster care who also are involved with the juvenile justice system. Commenters also opposed our proposal to consider a placement at home as a discharge because it could artificially inflate the rate of foster care re-entry if the child re-entered foster care after the placement at home.
Commenters in response to the 2008 NPRM generally supported our proposals to collect information on the child's prior adoptions and whether the child has siblings in out-of-home care or siblings who are adopted or in a legal guardianship. Commenters also supported our proposal to expand our collection of child and family circumstances that are present at the child's removal, but commenters opposed collecting that information at any point beyond removal. Commenters also requested that the AFCARS data elements incorporate kin as an additional relationship type between the child and/or the child's family and the foster parent(s), adoptive parent(s) or legal guardian(s). The section-by-section discussion of the proposed rule that follows in the preamble addresses public comments received in response to the 2008 NPRM and how they were considered in this proposed rule.
As we synthesized and analyzed comments from the 2008 NPRM, the President signed into law Public Law 110–351. As stated above, based in part on the significant statutory changes to the title IV–E program, we decided to issue a new NPRM rather than proceed with a final rule based on the 2008 NPRM. To inform our development of this NPRM, we requested comments through a
Our consultation from the 2010
• Whether and how data collection and reporting requirements should change in order to provide a comprehensive national picture of children in foster care and those adopted with the involvement of the title IV–E agency;
• The circumstances under which a child should be included in the reporting population and the information the title IV–E agency should collect on children in its placement and care responsibility who are placed in settings other than foster family homes, group homes and child care institutions;
• The case level data on children in foster care, adoption and guardianship that is important to collect and report on an ongoing basis, including data that is not collected currently, that can inform and support Federal monitoring activities of the new provisions of title IV–E of the Act created by Public Law 110–351;
• The case level data on children in foster care that should be collected and reported that would provide insight into the environment and circumstances surrounding the child at removal, including why a child remains in foster care or why a child's permanency plan changes; and,
• What information should be collected about caseworker visits with a child.
Many commenters in response to the 2010 FR Notice echoed the support expressed by commenters to the 2008 NPRM to restructure AFCARS to support longitudinal data analysis in order to provide a comprehensive national picture of children who are involved with the title IV–E agency. Commenters to the 2010 FR Notice felt that it is important to include in the AFCARS out-of-home care reporting population and title IV–E guardianship and adoption assistance reporting population children age 18 or older who are involved with the title IV–E agency and to track accurately in AFCARS children who are in the placement and care responsibility of the Tribal title IV–E agency. However, commenters also expressed concern with the burden associated with reporting a longitudinal data file and additional data elements to AFCARS. Commenters to the 2010 FR Notice asked us to be clear about who would be included in each reporting population and asked that we consider aligning the AFCARS data elements with data elements from other data systems, such as the National Child Abuse and Neglect Data System
Some commenters to the 2010 FR Notice felt that most of the information associated with the new provisions created by Public Law 110–351 could be collected through case narratives in the child's record, rather than through AFCARS. Commenters also expressed that it would be difficult to capture comprehensive information in AFCARS on caseworker visits and the reasons why a child's permanency plan changes or, generally, why the child remains in foster care. Conversely, other commenters to the 2010 FR Notice highlighted specifically that it would be helpful to collect the same information on children who exit foster care to guardianship as children who exit foster care to adoption, whether the child has siblings in out-of-home care or siblings who have been adopted or are in a guardianship, and information relating to the educational stability of the child, such as the proximity of the child's school to the child's placement, the child's grade and the child's academic performance.
In developing this proposed rule, we considered these comments as well as comments to the 2008 NPRM. The section-by-section summary found later in this preamble provides more discussion on how specific comments factored into our proposal.
An overview of the major proposed revisions to AFCARS follows and includes many of the changes we proposed in the 2008 NPRM and other changes in response to the new statutory provisions of the Act resulting from Public Law 110–351.
References throughout this proposed rule to “child” or “children” are inclusive of all children who are served by the title IV–E program, including those age 18 or older. We are choosing to use a single reference, as opposed to using multiple references such as “youth” or “young adult,” because we believe it is less cumbersome and is easier to comprehend for the regulation.
We propose, as we did in the 2008 NPRM, to restructure the AFCARS data file in two ways, (1) to support longitudinal data analysis; and (2) to require title IV–E agencies to submit two data files an out-of-home care data file and an adoption and guardianship assistance data file.
We propose that the out-of-home care data file contain longitudinal data elements that provide historical information on children who enter foster care; however, the adoption and guardianship assistance data file will not contain any longitudinal data elements. Title IV–E agencies are required to report in the existing AFCARS foster care data file some living arrangement, provider and permanency information relative to the child's most recent experiences in his or her most recent foster care episode only. We propose instead that title IV–E agencies collect and report historical information in the out-of-home care data file on (1) the date and circumstances of each of the child's removals and placements into foster care; (2) the type of environment the child was living in at the time of each of the child's removals and the title IV–E agency's authority for placement and care responsibility; (3) the date and type of each living arrangement the child experiences while in out-of-home care; (4) the demographics on each foster family home provider, if applicable; (5) information on each of the child's permanency plans and concurrent permanency plans, if applicable; (6) the date, location and purpose of each caseworker visit with the child; (7) each date that a petition to terminate parental rights (TPR) was filed and each TPR date; and (8) the date and reasons of each of the child's exits from out-of-home care.
We received many comments in response to both the 2008 NPRM and the 2010 FR Notice on our proposal to require title IV–E agencies to report recent and historical data on children who enter foster care. Commenters to both the 2008 NPRM and the 2010 FR Notice overwhelmingly expressed support for the shift to longitudinal data reporting on children entering, currently in and exiting foster care and were generally supportive of the idea that longitudinal data is more valuable and beneficial than current point-in-time data for evaluating child outcomes. However, several commenters to both the 2008 NPRM and the 2010 FR Notice expressed concerns with implementing a longitudinal methodology for AFCARS with existing data systems and resources. Specific concerns included that some title IV–E agencies' data systems do not fully support longitudinal information for children placed in non-foster care settings who are never placed in foster care, the impact of the new historical AFCARS data set on current foster care metrics (
We recognized the concerns expressed by the commenters to both the 2008 NPRM and the 2010 FR Notice and used them to modify and clarify our proposal for longitudinal data analysis in this NPRM. We believe there is substantial support for our proposal, which also was reinforced by some commenters acknowledging that their title IV–E agencies have collected longitudinal data on children in foster care for many years and have used the longitudinal data to conduct complex analysis on their foster care populations. Since the publication of the 2008 NPRM, several State title IV–E agencies have implemented a comprehensive case management information system that supports the collection and storage of all information relevant to a child's out-of-home care experience. Additionally, enhancements in the title IV–E agency's case management system to support new data collection requirements may be eligible for SACWIS development funding. We have been and will continue to work with Tribal title IV–E agencies as they develop information systems that will be used to support their title IV–E program and to meet the data collection requirements of AFCARS. We believe the anticipated benefits of obtaining longitudinal data are vast and include the elimination of information gaps that exist in the current AFCARS data, which raise questions about the child's experiences and make the data more difficult to analyze, better information for the CFSRs or other Federal monitoring efforts and the building of our ability to conduct sophisticated analysis on a child's or groups of children's experience in foster care. Thus, based on the supportive comments to both the 2008 NPRM and the 2010 FR Notice and the anticipated benefits, we continue to propose restructuring AFCARS in order to support longitudinal data analysis by capturing more comprehensive information on the experiences of children who are placed in foster care.
As in the 2008 NPRM, we propose to eliminate a number of features in the AFCARS regulation that are no longer useful to us or the title IV–E agencies. We propose to dispose of the requirement for title IV–E agencies to report summary foster care and adoption data files and to merge the information on adoptions into the out-of-home care data file. Currently, title IV–E agencies must submit four data files (see appendices A and B to part 1355) a foster care data file with information on all children in foster care under the responsibility of the title IV–E agency or another public agency with an agreement with the title IV–E agency, an adoption data file with information on all children adopted during the report period in whose adoption the title IV–E agency had some involvement and two summary data files in which the title IV–E agency indicates aggregate numbers of foster care records and adoption records and the age distribution of the children in each of those records. Summary data files are no longer necessary due to advances in technology that better verify the completeness of data submissions; commenters to the 2008 NPRM were appreciative and supportive of this proposal.
Our proposal continues the 2008 NPRM proposal of including most of the information from the existing foster care and adoption data file in one data file, called the out-of-home care data file, as well as adding a new data file, called the title IV–E adoption and guardianship assistance data file, to report information on children who are in a finalized adoption or legal guardianship under a title IV–E adoption or guardianship assistance agreement and on the agreement itself. Our current proposal for the title IV–E adoption and guardianship assistance data file differs slightly from the 2008 NPRM where we proposed to collect information on the adoption assistance agreement (both title IV–E and State funded) and a guardianship subsidy (State and title IV–E funded, if the State had an approved demonstration waiver). We did not receive substantive comments in response to the 2008 NPRM on this proposal. Generally, we propose in this NPRM to collect the same information, if applicable, on adoptions and legal guardianships. The new data file structure will most likely eliminate the need to resubmit prior data files since the out-of-home care data file will now include historical information on the child's current and prior removals and out-of-home care episodes; any identified data corrections may occur either in the title IV–E agency's corrective data file (described in section 1355.45) or in the data file due at the next regular six-month report period.
We also continue our proposal to remove information on technical submission requirements from the regulation. These major changes we propose to make to AFCARS will reduce the burden associated with submitting two additional data files, will provide a logical flow of data for the child's entire out-of-home care episode in one file and will provide the title IV–E agencies and us with flexibility to keep the pace with newer technology. These changes, along with all other features of the proposed database, are detailed in the section-by-section discussion found later in this preamble.
This NPRM proposal is very similar, for the most part, to current AFCARS practice regarding reporting populations. We propose that the out-of-home care reporting population include a child of any age who is placed in foster care as defined at 45 CFR 1355.20 or a child who has run away or whose whereabouts are unknown at the time the child is placed under the placement and care responsibility of the titleIV–E agency. The out-of-home care reporting population continues to include a child who is under the placement and care responsibility of another public agency that has an agreement with the title IV–E agency pursuant to section 472(a)(2)(B) of the Act, or an Indian Tribe, Tribal organization or consortium with which the title IV–E agency has an agreement or contract and on whose behalf title IV–E foster care maintenance payments are made.
Based on the comments we received in response to the 2008 NPRM, we propose an out-of-home care reporting population that is closer to the current AFCARS foster care reporting population than to that proposed in the 2008 NPRM. In the 2008 NPRM we proposed an expanded out-of-home care reporting population that would have included every child under the State's age of majority placed away from his or her parents or legal guardians for 24 hours or more for whom the title IV–E agency has placement and care responsibility regardless of the child's living arrangement, including a child whose only placement was in a non-foster care setting such as a detention facility, hospital or jail. In the 2008 NPRM, we proposed that a child who returns home while still in the title IV–E agency's placement and care responsibility no longer be included in the AFCARS out-of-home care reporting population and the child would be reported as having exited from out-of-home care. We now propose that the child remain in the out-of-home care reporting population until the title IV–E agency no longer has placement and care responsibility;
We propose that the adoption and guardianship assistance reporting population include any child who is in a finalized adoption under a title IV–E adoption assistance agreement with the title IV–E agency pursuant to section 473(a) of the Act and any child who is in a legal guardianship under a title IV–E guardianship assistance agreement with the title IV–E agency pursuant to section 473(d) of the Act. A child remains in the title IV–E adoption and guardianship assistance reporting population through the end of the report period in which the agreement ends or is terminated.
As previously noted, we propose that the AFCARS data file no longer include an adoption data file. The existing AFCARS adoption data file not only includes information on children who were adopted from foster care, but also those who were adopted through a private agency and in whose adoption the title IV–E agency had any involvement. We proposed in the 2008 NPRM that the title IV–E agency report in the out-of-home care data file additional information on children exiting out-of-home care to a finalized adoption. We also proposed that the title IV–E agency report in the adoption and guardianship assistance file information on children who were adopted from a private agency on whose behalf the title IV–E agency is paying an adoption subsidy or providing services. Our current proposal for the adoption and guardianship assistance reporting population differs from the adoption assistance and guardianship subsidy reporting population proposed in the 2008 NPRM which would have included any child under a title IV–E or State adoption assistance agreement in effect during the report period, including children in pre-adoptive homes and any child under a subsidized guardianship agreement supported by State and/or title IV–E funds, if the State had an approved demonstration waiver.
We modified our proposal for both the out-of-home care reporting population and the adoption and guardianship
We propose to add and clarify the type of case-level information collected on children who enter foster care and children who are under a title IV–E adoption or guardianship assistance agreement. These changes are designed to permit enhanced analyses of the factors that may affect a child's permanency and to incorporate data elements that capture the provisions of Public Law 110–351. The changes include:
• Revised data elements designed to better capture the circumstances affecting the child and family at the time of removal;
• Revised data elements to better describe the child's environment at removal and the location and type of living arrangements in which children are placed by the title IV–E agency;
• New data elements on caseworker visits with children in foster care;
• New data elements that allow us to identify minor parents who have their children with them in foster care, sibling groups and whether or not siblings are placed together;
• Revised data elements that enhance our understanding of permanency planning for children in foster care, including new data elements that identify why a child's permanency plan changes, the child's concurrent permanency plans and the child's transition plan;
• New data elements that inform us about the child's well-being, including the child's educational level, educational stability and involvement with special education, as well as clarified data elements on the child's health, behavioral and mental health conditions;
• Revised data elements that enhance our understanding of prior adoptions and legal guardianships, as well as the child's exit to a new adoption or legal guardianship; and,
• Revised and new data elements designed to capture the number and characteristics of children who are in finalized adoptions and legal guardianships under title IV–E adoption and guardianship assistance agreements as well as information in the child's title IV–E adoption or guardianship assistance agreement, including the amount of the subsidy and nonrecurring costs.
We received many supportive comments in response to both the 2008 NPRM and 2010 FR Notice on our proposal to capture greater detail on children who enter foster care and children who are under a title IV–E adoption or guardianship assistance agreement. Some commenters in response to the 2008 NPRM requested that we clarify our proposal for a number of data elements and we have made every effort to address those requests. We explain how individual comments factored into each data element in the section-by-section discussion of the NPRM found later in this preamble.
As in our 2008 NPRM, we propose to improve AFCARS data quality in several ways. First, we propose to clarify and modify many existing data element descriptions that stakeholders and commenters to the 2008 NPRM and 2010 FR Notice informed us were problematic. Second, we propose to strengthen our assessment and identification of errors within a title IV–E agency's data file through cross-file checks to identify defaults and other faulty programming that result in skewed data across a title IV–E agency's entire data file, increased internal consistency checks to validate the logical relationship between data elements, and modified requirements for missing data and invalid data within a data file. Finally, we propose to implement penalties consistent with section 474(f) of the Act for title IV–E agencies that do not meet our data file and data quality standards for AFCARS.
Commenters in response to the 2008 NPRM proposal and the 2010 FR Notice expressed some concern over the burden associated with reprogramming their information systems to collect and report additional data elements. Many of the commenters in response to the 2008 NPRM and 2010 FR Notice raised concerns about the ambiguity of the definitions for the data elements and the value of the additional data elements. We are cognizant of the potential burden associated with requiring title IV–E agencies to submit additional information to AFCARS, and of the requirement in section 479(c)(1) of the Act that instructs that AFCARS “avoid unnecessary diversion of resources from agencies responsible for adoption and foster care.” We recognize that regardless of the amount and type of information that will be in the final rule, the title IV–E agencies will have to write new extraction routines to report the AFCARS data. Throughout the process of drafting this proposed rule, we considered the burden of inputting the information and programming that may be associated with the addition of each new data element and we critically weighed the advantages of each data element proposed here against the potential increased burden to title IV–E agencies. We tried, as we did in the 2008 NPRM, to ask for information that caseworkers collect as part of their normal work duties and that is already collected in the majority of State title IV–E agency information systems. We recognize that Tribal title IV–E agencies have not collected this data previously but we have been providing support to Tribal title IV–E agencies as they consider developing an information system that will meet their needs. We will continue to provide intensive technical assistance to both State and Tribal title IV–E agencies once the final rule for AFCARS is published.
In response to the comments we received from both the 2008 NPRM and 2010 FR Notice, we did not include a number of data elements that we proposed in the 2008 NPRM, namely
We propose to define the standards and manner by which we assess and determine compliance on each data file submitted by the title IV–E agency, permit the opportunity for corrective action by the title IV–E agency and if necessary, assess a penalty for the title IV–E agency's continued noncompliance with AFCARS requirements. We propose to apply compliance standards to both the out-of-home care data file and the adoption and guardianship assistance data file, with exceptions for optional provisions of title IV–E. Specifically, we do not propose to apply the compliance standards to children in either data file who are age 18 or older and/or children in the adoption and guardianship assistance data file who are in a legal guardianship under a title IV–E guardianship assistance agreement. For the remaining children in each reporting population, we propose to assess each data file for errors such as missing, invalid or internally inconsistent data, cross-file errors and tardy transactions. The title IV–E agency must submit each data file to ACF on or before the reporting deadline, in the proper format and free of cross-file errors.
We propose to implement penalties for title IV–E agencies that do not meet our data compliance and data quality standards. We propose that the pool of funds that are subject to a penalty for noncompliance be the title IV–E agency's claims for title IV–E foster care administrative costs (including training) for the quarter in which each original data file is due (as opposed to the corrected data file), consistent with section 474(f) of the Act and the 2008 NPRM proposal.
Many commenters in response to the 2008 NPRM proposal and 2010 FR Notice requested tolerance for errors related to the collection and reporting of demographic data elements due to concerns about meeting compliance standards for these elements. Many commenters to both the 2008 NPRM and 2010 FR Notice also expressed concern with the proposed penalty structure. Some commenters requested that we provide incentives in addition to or in lieu of penalties, vary penalties by degrees of non-compliance and phase-in or delay the implementation of penalties. We believe that the compliance standards and penalty structure we are proposing will ultimately increase the quality of the data that is collected and reported by title IV–E agencies.
Implementation of changes to AFCARS described in this NPRM will be dependent on the issuance of a final rule. We expect provisions in an eventual final rule to be effective no sooner than the start of the second Federal fiscal year following the publication of the final rule. A precise effective date will be dependent on the publication date of the final rule, but this construct provides title IV–E agencies with at least one full year, and possibly longer, before we will require them to begin collecting and reporting new AFCARS data. We welcome public comments on specific provisions included in this proposed rule that may warrant a longer phase-in period and will take these comments into consideration when developing the final rule.
In section 1355.40, we propose to revise the statement of scope for AFCARS. The proposed scope statement explains which entities must report data to ACF and what data those entities must report.
In paragraph (a), we propose that all title IV–E agencies collect and report AFCARS data to ACF. This is consistent with our legislative authority in section 479 of the Act. Currently, all States, the District of Columbia and Puerto Rico operate title IV–B and IV–E programs. As a result of Public Law 110–351, Indian Tribes, Tribal organizations or consortia can now administer title IV–E programs directly and those that do so are required to collect and report AFCARS data.
In paragraph (b), we propose to revise the general parameters for collecting and reporting AFCARS data. We propose that a title IV–E agency collect and submit to us information for the reporting populations proposed in new section 1355.41 and that the information must be submitted to us on a semi-annual basis in an out-of-home care data file and an adoption and guardianship assistance data file as required in proposed new section 1355.42. This information includes a child's demographics and characteristics, removal, living arrangements and experiences in out-of-home care, as well as the nature of finalized title IV–E adoptions and guardianships and information on title IV–E adoption and guardianship assistance agreements.
Current AFCARS regulations require title IV–E agencies to report data in the foster care data file on a child's demographics, most recent removal and circumstances of that removal, current placement settings, permanency goals and Federal assistance. In the current AFCARS adoption data file, we collect information on a child's demographic information, special needs status, birth and adoptive parent(s), placement information and adoption support. While we propose to continue to require reporting of some of the same data that is currently collected in the foster care and adoption data files in the out-of-home care data file, we now propose requiring a title IV–E agency to report information on legal guardianship and other topics, as detailed below.
In the 2008 NPRM we proposed to expand the scope of certain information title IV–E agencies must report in the out-of-home care data file to include a child's entire historical and current experience in out-of-home care in order to establish a more comprehensive and longitudinal database. Because comments on the 2008 NPRM and the 2010 FR Notice were generally supportive of the move to a longitudinal database and because the existing data does not meet our program needs, we again propose to expand the scope of information. As in the 2008 NPRM, we propose to collect information on education, concurrent planning and demographic information on a child's adoptive parents in the out-of-home care data file. For the first time, we propose to collect information on caseworker visits. We also propose to collect information on a child's adoption assistance agreement in the adoption and guardianship assistance data file, as in the 2008 NPRM. However, because we have the same need for information on children supported by title IV–E guardianship assistance program, we also propose to collect equivalent information on a child's title IV–E guardianship assistance agreement.
In new section 1355.41, we propose the reporting populations for the AFCARS out-of-home care and adoption and guardianship assistance data files. The definition of each reporting population describes which children the title IV–E agency is required to collect and report information on in each respective data file.
In paragraph (a), we explain our proposed out-of-home care reporting population. A child who enters the out-of-home care reporting population continues in the population until placement and care responsibility ends.
In paragraph (a)(1), we propose at what point a child enters the out-of-home care reporting population. We also propose that the title IV–E agency must report data as described in section 1355.43 on each child for whom the title IV–E agency has placement and care responsibility and who meets one of the conditions in paragraphs (a)(1)(i) through (a)(1)(iii) .
In paragraphs (a)(1)(i) through (a)(1)(iii), we further clarify the out-of-home care reporting population.
In paragraph (a)(1)(i), we specify that the child enters the out-of-home care reporting population if he or she is in foster care as defined in section 1355.20, which defines foster care as 24-hour substitute care for any child placed away from his or her parent(s) or guardian(s) and for whom the title IV–E agency has placement and care responsibility. This includes instances when a child has been placed in a foster care setting following placement in a non-foster care setting.
In paragraph (a)(1)(ii), we specify that the out-of-home care reporting population includes any child who is under the placement and care responsibility of another public agency that has an agreement under section 472(a)(2)(B) of the Act, or an Indian Tribe, Tribal organization or consortium that has a contract or agreement, with the title IV–E agency to pay title IV–E foster care maintenance payments on the child's behalf.
In paragraph (a)(1)(iii), we specify that a child enters the out-of-home care reporting population if he or she has run away or his or her whereabouts are unknown at the time that the title IV–E agency receives placement and care responsibility for the child.
The proposal for paragraphs (a)(1)(i) and (a)(1)(iii) differ from both current AFCARS foster care reporting population and the out-of-home care reporting population proposed in the 2008 NPRM. The foster care reporting population in existing AFCARS regulations includes all children who are in foster care for more than 24 hours under the responsibility of the State agency administering or supervising the administration of the title IV–B Child and Family Services Plan (CFSP) and the State title IV–E plan, that is, all children who are required to be provided the assurances in section 422(b)(10) of the Act. The existing AFCARS foster care reporting population includes children at the time they enter foster care as defined in 45 CFR 1355.20. In the 2008 NPRM, we proposed a new and expanded out-of-home care reporting population to include every child under the State's age of majority placed away from his or her parent(s) or legal guardian(s) for 24 hours or more for whom the State title IV–E agency had placement and care responsibility regardless of the child's living arrangement. This included a child whose only placement while under the placement and care responsibility of the title IV–E agency was in a non-foster care setting such as a detention facility, hospital or jail. Many commenters to the 2008 NPRM proposal felt the definition was too broad. States were particularly concerned about the burden of having to gather data from other State systems that serve a child in a juvenile justice, mental health or hospital setting. Commenters to the 2010 FR Notice expressed similar concerns about data collection and staff burden. We considered the comments to both the 2008 NPRM and the 2010 FR Notice and modified the out-of-home care reporting population definition in proposed section 1355.41(a)(1) to address these concerns. This proposal is similar to the foster care reporting population in the existing AFCARS in that those children whose only placement is a non-foster care setting (
The proposal for paragraph (a)(1)(ii) is similar to the existing AFCARS regulations that define the foster care reporting population (Appendix A to part 1355, section II). All title IV–E agencies can enter into agreements/contracts with Indian Tribes, Tribal organizations or consortia and agreements with separate public agencies such as juvenile justice or mental health agencies in order to claim title IV–E on behalf of title IV–E eligible children. These other public or Tribal entities with which the title IV–E agency has an agreement do not submit information on children in the reporting population to ACF separately from the title IV–E agency. Rather, information on children under the placement and care responsibility of an agency that has an agreement with the title IV–E agency must be a part of the title IV–E agency's AFCARS data submission.
In existing AFCARS policy, the title IV–E agency is required to report on all children up to the State's age of majority and a child of any age that is eligible for and receiving a title IV–E payment. We propose to modify the AFCARS reporting population to include a child of any age for whom the title IV–E agency has placement and care responsibility when such a child has been placed in foster care in accordance with the regulatory definition of foster care in section 1355.20. We propose to include a child of any age in the out-of-home care reporting population to be consistent with the changes in Federal law per the enactment of Public Law 110–351, which amended section 475(8)(B) of the Act. Section 475(8)(B) now provides the option for title IV–E agencies to adopt a definition of “child” for the title IV–E foster care program that allows title IV–E reimbursement for an eligible child up to age 21 who meets certain education and employment conditions. We propose the out-of-home care reporting population to include a child of any age that meets the conditions in paragraphs 1355.41(a)(1)(i) through (a)(1)(iii) whether or not the child receives a payment that is federally subsidized because this will allow us to establish a more comprehensive and longitudinal national database on all children in out-of-home care.
We modified the out-of-home care reporting population from the existing AFCARS regulation by including those children for whom the title IV–E agency has placement and care responsibility but who have runaway or whose whereabouts are unknown at the time that the title IV–E agency receives placement and care responsibility for the child. We propose this modification to update the regulation to incorporate current AFCARS practice regarding a child who has runaway or whose whereabouts are unknown.
As we did in the 2008 NPRM, we want to clarify that the proposed out-of-home care reporting population does not include children who are under the
In paragraph (a)(2), we clarify that once a child enters the out-of-home care reporting population he or she remains in the out-of-home care reporting population through the end of the report period in which the title IV–E agency's placement and care responsibility ends, regardless of any subsequent living arrangement while in out-of-home care. For example, we propose to continue including in the out-of-home care reporting population a child who moves from a placement in a foster care setting to a non-foster care setting such as a detention facility, hospital or jail. We also propose to include in the out-of-home care reporting population a child whose whereabouts are unknown or a child who runs away, a child who has returned home and is placed with his or her parent(s) or legal guardian(s) under the continued placement and care responsibility of the title IV–E agency, or, a child age 18 or older who is living independently. In these situations, the child remains under the title IV–E agency's placement and care responsibility and therefore these children must be included in the out-of-home care reporting population.
We propose to require the title IV–E agency to continue to report information on all of a child's placements once he or she enters the out-of-home care reporting population including various out-of-home care placement settings that are outside of the definition of foster care. Including a child's placement in non-foster care settings such as a detention facility, hospital or jail will permit title IV–E agencies and ACF to complete longitudinal analyses of a child's total out-of-home care experience, as advocated by States and others in the field.
In the 2008 NPRM, we proposed to discontinue reporting AFCARS data for a child who is returned home to his or her parent(s) or legal guardian(s), and considered such a child to have exited the out-of-home care reporting population even if the child remained under the placement and care responsibility of the title IV–E agency. This proposal was a reversal from current AFCARS requirements which indicate that a child placed at home with his or her parent(s) or legal guardian(s) may be included in the foster care reporting population, but would be considered discharged for AFCARS purposes automatically after six months. Some commenters to the 2008 NPRM opposed our proposal and many felt strongly that children who are placed at home under the placement and care responsibility of the title IV–E agency should remain in the out-of-home care reporting population, as they felt that considering a placement at home as a discharge would artificially inflate the rate of foster care re-entry if the child moved to a foster care setting after the placement at home. After considering these comments, we agree that we want to collect data on all children once they have entered the out-of-home care reporting population until the title IV–E agency's placement and care responsibility ends. Therefore, we propose that any child who enters the out-of-home care reporting population remain in the out-of-home care reporting population until the title IV–E agency's placement and care responsibility for the child ends.
In paragraph (a)(3), we propose that for AFCARS purposes, an out-of-home care episode is defined as the period between a child's entry into the out-of-home care reporting population and the date the title IV–E agency's placement and care responsibility ends. If the title IV–E agency returns the child home to live permanently with his or her parents or legal guardians and placement and care responsibility ends, the child exits the out-of-home care reporting population.
The existing AFCARS regulations consider a child to have exited foster care when he or she is legally discharged from the title IV–E agency's placement and care responsibility. The child exits the foster care reporting population for AFCARS purposes and completes an out-of-home care episode in these circumstances. Our current proposal differs from the existing AFCARS regulation and the 2008 NPRM proposal, which proposed that the title IV–E agency discontinue reporting a child to AFCARS if the child is placed at home with his or her parents, even if the child remains under the placement and care responsibility of the title IV–E agency. Many States over the years have highlighted the need for more definitive guidance on when the child should be considered to have exited the AFCARS foster care reporting population so we are proposing the end of the placement and care responsibility as the point at which a child exits the out-of-home care reporting population.
In paragraph (b), we explain our proposed reporting population for the adoption and guardianship assistance data file.
In paragraph (b)(1) we propose that the title IV–E agency must report data as described in section 1355.44 on each child who meets one of the conditions in the paragraphs (b)(1)(i) or (b)(1)(ii).
In paragraph (b)(1)(i), we propose to require the title IV–E agency to report information required by section 1355.44 on any child for whom there is a finalized adoption under a title IV–E adoption assistance agreement (per section 473(a) of the Act) with the reporting title IV–E agency that is or was in effect at some point during the report period. The existing AFCARS regulation does not include an adoption and guardianship assistance data file. In the existing AFCARS regulation, title IV–E agencies report in the adoption file on any child adopted in the State during the report period, in whose adoption the title IV–E agency had any involvement. Our current proposal differs from the reporting population for the existing AFCARS adoption data file and the reporting population proposed in the 2008 NPRM for the adoption and guardianship subsidy data file. In the 2008 NPRM we proposed that title IV–E agencies report on any child with a title IV–E adoption assistance agreement or a State adoption assistance agreement in effect during the report period, including children in pre-adoptive homes. Unlike the 2008 NPRM, we do not propose to include a child in a pre-adoptive living arrangement in the adoption and guardianship assistance reporting population.
We received comments to the 2008 NPRM and 2010 FR Notice suggesting concern about barriers to obtaining ongoing information about a child post-adoption. States were particularly concerned about intrusiveness, inability and lack of authority to gather this data. To address some of these comments, and in an effort to eliminate duplicate information in the AFCARS files in paragraph (b)(1), we now propose to
We are not proposing to include information on a child in a pre-adoptive placement in this data file, although he or she may have a title IV–E agreement and receive title IV–E adoption assistance before the adoption finalization. This information continues to be collected in the out-of-home care data file and the title IV–E agency must report information on the child's pre-adoptive living arrangement in proposed section 1355.43(e).
We propose to include a child in a finalized adoption under a title IV–E adoption assistance agreement in the adoption and guardianship assistance reporting population regardless of whether a financial subsidy is paid on the child's behalf. For example, a title IV–E agency would include in this reporting population a child with a finalized adoption under a title IV–E adoption assistance agreement that contains a subsidy amount of $0, for the purposes of receiving only Medicaid assistance.
With the increased activity in adoption and the corresponding outlays for the program, there has been an increase in requests for information from Congress, States, the media and other sources, regarding the population of adopted children receiving title IV–E assistance. In addition, section 479(c) of the Act mandates that we collect information on the extent and nature of assistance provided by Federal adoption programs and the characteristics of the child with respect to whom such assistance is provided. Although we propose for a title IV–E agency to report only children with finalized adoptions under title IV–E agreements in the adoption and guardianship assistance data file, we believe that the information proposed here in conjunction with the information proposed in paragraphs 1355.43(e) through (h) of the out-of-home care data file may present a more comprehensive picture of adoptions supported through the title IV–E program.
In paragraph (b)(1)(ii), we propose to collect the information in section 1355.44 on any child in a legal guardianship who is under a title IV–E guardianship assistance agreement, pursuant to section 473(d) of the Act, with the reporting title IV–E agency that is or was in effect at some point during the current report period. Information on each child adopted with the involvement of the title IV–E agency is currently reported to AFCARS, but no information is collected regarding children in legal guardianships. In the 2008 NPRM we proposed to collect limited information on any child on whose behalf a guardianship assistance payment was made pursuant to a title IV–E or State assistance agreement with the title IV–E agency. At the time the 2008 NPRM was published, the only subsidized guardianships under title IV–E were those in States with demonstration waivers.
We propose to collect information on any child in a legal guardianship receiving title IV–E guardianship assistance to gather data on children supported through the title IV–E guardianship assistance program established via changes to section 473(d) of the Act made by Public Law 110–351 in October 2008. To date, 31 title IV–E agencies have applied to participate in the title IV–E guardianship assistance program and additional title IV–E agencies may do so in the future. Comments to the 2008 NPRM, which pre-dated title IV–E authority for title IV–E guardianship assistance payments, were mixed regarding the proposal to collect information about children in legal guardianships on an ongoing basis. Some commenters believed this information was among the most helpful enhancements proposed for AFCARS while others had concerns about intrusion into the lives of guardianship families and the agency's ability to collect accurate data on these families. We received similar comments to the 2010 FR Notice from several States opposed to collecting data on legal guardianships. States were particularly concerned about intrusiveness, inability and lack of authority to gather the data. To address some of these concerns, we modified our proposal in paragraph (b)(2) to limit the adoption and guardianship assistance reporting population to only those children who are in a legal guardianship under a title IV–E guardianship assistance agreement, rather than all children receiving State or Federal guardianship assistance. In addition, we propose to collect only basic demographic information and information readily accessible regarding the child's title IV–E guardianship arrangement and assistance agreement in effect during the report period. As such, there is minimal intrusion on the legal guardian(s), if any, and the title IV–E agency has ready access to the information requested via the title IV–E guardianship assistance agreement.
While there is no statutory mandate to collect information for children who have achieved permanency through legal guardianship, unlike that for adoption, we propose to collect this limited information because we have the same need for information on children supported by title IV–E funding, per section 473(d) of the Act as we do for adopted children. Title IV–E agencies are currently required to collect and report financial information for children under title IV–E guardianship assistance agreements per Form CB–496, in the same manner that title IV–E agencies are to report information on children under title IV–E adoption assistance agreements. While we receive aggregate information on number of guardianships and average subsidy amounts through Form CB–496, we propose to collect child-level information on guardianships through AFCARS to conduct more nuanced data analysis on the characteristics of children under title IV–E guardianship assistance agreements.
Commenters to the 2008 NPRM also expressed concern with using the term “legal guardian” because States may use different terms in practice. This is no longer an issue since the guardianship
In paragraph (b)(2), we clarify that a child remains in the adoption and guardianship assistance reporting population through the end of the report period in which the title IV–E agreement ends or is terminated. Neither the current AFCARS regulations nor the 2008 NPRM proposal include such clarification regarding the circumstances under which a child exits the reporting population for this data file. We propose to include this information to respond to commenters to the 2008 NPRM who requested clarification on the circumstances of exit for the adoption and guardianship assistance reporting population, and length of time title IV–E agencies are required to collect information on a child in this reporting population.
We propose to add a new section 1355.42 on data reporting requirements, including specifying the report periods for the data files, general provisions for collecting and submitting the out-of-home care and adoption and guardianship assistance data files and record retention rules to comply with AFCARS requirements. This section was first proposed in the 2008 NPRM.
In paragraph (a), we propose that each title IV–E agency submit an out-of-home care data file and an adoption and guardianship assistance data file to ACF on each child in the reporting populations on a semi-annual basis. The two six-month report periods are from October 1 to March 31 and from April 1 to September 30 of each Federal fiscal year. These report periods are the same as in the existing AFCARS, and also were proposed in the 2008 NPRM.
In consultations held prior to the publication of the 2008 NPRM, there were several suggestions that we consider moving to annual, or even less frequent reporting, rather than semi-annual reporting of AFCARS data. Specifically, in the consultations held prior to the 2008 NPRM, commenters were concerned that ACF would be unable to compile an annual data file from two semi-annual submissions for the purposes of the current CFSRs and the annual outcomes report to Congress. However, we can assure title IV–E agencies that our software currently allows us to create an annual data file for these purposes. We also expect that the new requirements proposed for using a permanent and encrypted person identification number (sections 1355.43(a)(4) and 1355.44(a)(3)) will aid both our own and title IV–E agencies' ability to create annual data files. ACF explained the rationale for proposing to maintain semi-annual submissions for AFCARS in greater detail in the preamble of the 2008 NPRM (73 FR 2088).
We also propose in paragraph (a) that title IV–E agencies submit their data files to us within 30 calendar days of the end of the report period. Therefore, a title IV–E agency will be required to submit AFCARS data files to ACF every year by April 30 and October 30. If this date falls on a weekend, the title IV–E agency must submit the data files by the end of the following Monday. This is a change both from the current AFCARS, which allows a 45 day period in which agencies are required to submit their data files to ACF and from the 2008 NPRM where we proposed a 15 day submission deadline. Commenters to the 2008 NPRM believed that 15 days was an insufficient amount of time to prepare and submit data files. We noted these concerns and extend the proposed submission deadline to 30 days. We believe that a 30 day timeframe is workable and also will better meet title IV–E agency and Federal needs for data for the reasons described below.
AFCARS data is used extensively in a number of ACF priorities and requirements, including the current CFSRs and other monitoring efforts. If ACF receives AFCARS data closer to the end of the report period than we do now, this data may be available sooner to support analysis, which can be used to develop change and/or improvement initiatives. Also, because Adoption and Legal Guardianship Incentive funds are tied to how well States perform in increasing their rate of adoptions and legal guardianships as seen in the AFCARS data (section 473A(c)(2) of the Act), receiving this information more quickly can help to prevent delays in the awarding of incentive funds to States. The vast improvements in automation in the field of child welfare strengthen our belief that a title IV–E agency can prepare data files within 30 days. Many title IV–E agencies now have the ability to record and verify data in a more timely fashion than when the original AFCARS regulation was issued in 1993 (58 FR 67924). Finally, we have provided significant technical assistance to title IV–E agencies to encourage ongoing quality assurance checks on the data recorded in their information systems. We believe that title IV–E agencies will be able to meet this shorter time frame for submitting data with continued and routine use of our data quality utilities.
Finally, in paragraph (a) we require that title IV–E agencies submit their data to us in two separate data files: (1) Out-of-home care; (2) adoption and guardianship assistance. Currently, agencies must submit four data files (Appendices A and B to 45 CFR 1355): (1) A detailed foster care data file with information on all children in foster care during the report period; (2) a detailed adoption data file with information on all children adopted during the report period in whose adoption the title IV–E agency has some involvement; (3) a foster care summary data file in which the title IV–E agency indicates the total number of foster care records and the age distribution of children in those records; and, (4) an adoption summary data file in which the title IV–E agency indicates the total number of adoption records and the age distribution of the children adopted.
As in the 2008 NPRM, we propose to eliminate the existing foster care and adoption summary data files because they are no longer necessary. ACF originally intended to use the summary data files to verify the completeness of a title IV–E agencies' data submissions and to ensure that the data file was not corrupted during transmission. The summary data files also served as a quick count of the number of children in foster care and those being adopted. However, because the summary data files contain aggregate data, the number of children entering, discharged, adopted, served or in care on a specific day cannot be determined. Further, we are now able to use new technology that is better able to verify the completeness of a data submission without requiring the title IV–E agency to generate summary data files. Commenters to the 2008 NPRM were appreciative and supportive of the deletion of the summary data files.
In paragraph (b), we provide instructions on how the title IV–E agency must report information required under the proposed section 1355.43 for each child in the out-of-home care reporting population, as defined in section 1355.41(a).
Specifically, in paragraph (b)(1), we propose that a title IV–E agency submit the most recent information for data elements in the General information and Child information sections of the out-of-home care data file (paragraphs
In paragraph (b)(2), we propose that a title IV–E agency submit the most recent and historical information for most data elements in the following sections of the out-of-home care data file Parent or legal guardian information, Removal information, Living arrangement and provider information, Permanency planning, General exit information and Exit to adoption and guardianship information (paragraphs 1355.43(c), (d), (e), (f), (g) and (h), respectively). This information is required unless the exception in paragraph (b)(3) applies. This means that for every data file submission, we seek information on the child's full range of experience while in out-of-home care under the title IV–E agency's placement and care responsibility as described through the reporting of these data elements. This will allow ACF to develop a comprehensive picture of a child's full range of experience with entries, living arrangements and permanency plans while in the title IV–E agency's placement and care responsibility, as well as exits from the out-of-home care population. This proposal, which is modified slightly from the 2008 NPRM to incorporate data collection on caseworker visits and transition plans, differs from how title IV–E agencies currently report foster care information under the existing AFCARS requirements; a title IV–E agency currently submits certain detailed information on the child's current foster care episode and current placement setting only as of the last day of the report period.
We propose that a title IV–E agency submit recent and historical information pertaining to termination of parental rights (TPR) petitions, TPRs, removals, permanency and transition plans, caseworker visits, living arrangements and exits from the out-of-home care reporting population every report period rather than requiring updates on children who were in out-of-home care previously or who remain in out-of-home care from one report period to the next. Part of our goal in developing this proposed regulation is to eliminate features of the existing AFCARS that result in data collection that lacks detailed information about each foster care episode a child experiences. We propose to ask title IV–E agencies for historical information, rather than to report only on changes in the child's living arrangements, permanency plans and entry into or exit from out-of-home care so that we have a way to verify that the child's experiences have, in fact, remained the same across several report periods. Without longitudinal data collection, we are unable to have a comprehensive picture of a child's placement history within each out-of-home care episode. We also believe that this approach is less burdensome on title IV–E agencies. Although sending a child's full history involves submitting more data to us than providing an update as children exit and re-enter out-of-home care and their living arrangements and permanency plans change, we believe that submitting a child's history is less complicated and therefore requires fewer agency resources than the alternative. In other words, sending a child's full history requires the title IV–E agency to submit all the information it has on these data elements, rather than figure out a way to pull out only the information that has changed each report period.
We believe there will be many benefits to obtaining this longitudinal data, including the elimination of the information gaps that exist in the current AFCARS data, which raise questions about the child's experiences and make the data more difficult to analyze, the capability to build upon ACF's ability to conduct sophisticated analyses on what happens to a child or groups of children in foster care and the ability to better inform the current CFSRs and other monitoring efforts, on outcome measures such as time in foster care, foster care re-entries and the stability of foster care placements. Commenters to the 2008 NPRM and the 2010 FR Notice were largely supportive of the shift in the data collection methodology to incorporate longitudinal reporting. Although some commenters expressed concerns about implementing a longitudinal methodology for AFCARS data with existing systems and increasingly limited resources, we believe that the potential to have improved data available for Federal monitoring efforts and other priorities provides a compelling reason for proposing these changes.
We decided to propose gathering comprehensive data on removals, permanency and transition plans and caseworker visits, living arrangements and exits after considering whether a more limited approach to developing longitudinal data would meet our needs for data analysis, as well as those of title IV–E agencies. As described in the 2008 NPRM, the limited option(s) we considered would require a title IV–E agency to submit detailed removal, permanency plan, living arrangement and exit information on the child's four most recent out-of-home care episodes and four most recent living arrangements only. This would have captured almost all foster care episodes without requiring title IV–E agencies to submit extensive histories on children. Similarly, limiting the number of living arrangements that title IV–E agencies would report in AFCARS data would minimize the burden of this approach.
Ultimately, we decided that this more narrow approach was not sufficient. One problem with a limited longitudinal database was that we would have no information on the children who present some of the more significant challenges to the child welfare system. Children who experience high numbers of multiple living arrangements or frequently enter and exit out-of-home care are some of the nation's most vulnerable children. Furthermore, these children often require title IV–E agencies to expend more of their resources to address their problems.
In paragraph (b)(3), we propose an exception to the requirement for title IV–E agencies to report complete historical and current information on all out-of-home care episodes for children in the reporting population. The exception applies to those children who had an out-of-home care episode, as defined in 45 CFR 1355.41(a), prior to the effective date of the forthcoming final rule. Specifically, the exception applies to: (1) Children who are in out-of-home care on the effective date of the final rule who also had a prior out-of-home care episode before this date; and (2) children who enter out-of-home care after the effective date of the final rule who had a prior out-of-home care episode before this date. For such children, we propose that the title IV–E agency report the child's Removal dates, Exit dates and Exit reasons (paragraphs 1355.43(d)(1), (g)(1) and (g)(3) respectively) for each out-of-home care episode that occurred before the effective date of the final rule. The exception does not apply to a child's out-of-home care episode that is open on or begins after the effective date of the final rule; for such children we propose that a title IV–E agency report
We propose this exception to the general rule to report complete information to strike a balance between our desire for recent and historical information on all children in out-of-home care under the proposed new AFCARS data elements and the challenge that some agencies may face in gathering this information for a child's previous contacts with the child welfare system before these new rules go into effect. We chose to have a title IV–E agency report at least the child's prior removal and exit dates and exit reasons, because we believe these data elements are most critical to our ability to construct certain cohorts of children for analysis in outcome-based monitoring activities. Further, a title IV–E agency currently collects this information in the normal course of casework activities for children in foster care and reports some of this information in existing AFCARS data elements.
While our proposal is to mandate that title IV–E agencies provide three specific data elements for the prior out-of-home care episode(s) of a child who is in out-of-home care on the effective date of the final AFCARS rule, or enters out-of-home care after the effective date of the final rule, we expect the title IV–E agency to report as much information as possible for these prior out-of-home care episodes, and at least as much information as it reports currently under the existing AFCARS. We know that many title IV–E agencies currently collect comprehensive information that pertains to the proposed new data elements. Therefore, we believe that it is reasonable to expect that agencies may be able to provide us with some additional information on the new data elements regarding prior episodes in the absence of a mandate. A title IV–E agency that does not provide this additional information will not be penalized. A title IV–E agency that provides this information with errors also will not be penalized.
In paragraph (c), we propose that the title IV–E agency submit the most recent, point-in-time information for all data elements in the adoption and guardianship assistance data file that are applicable to the child during the report period. This information is needed only on the last day of the report period because while information may change over the course of years, many of the data elements in this data file are not likely to change during any given report period. For example, the amount of title IV–E adoption or guardianship assistance may remain static for the duration of the title IV–E assistance agreement or the amount may fluctuate over a number of years, depending on changes in foster care maintenance rates, whether the adoptive parent(s) or legal guardian(s) request a change in the amount of the title IV–E adoption or guardianship assistance amount, or changes in the child's circumstances. Regardless, capturing this information during each report period will allow ACF to better track and analyze the nature of title IV–E adoption and guardianship arrangements and assistance agreements and to make budget projections. This proposal was first introduced in the 2008 NPRM and received no substantive comments.
In paragraph (d), we propose how the title IV–E agency must report missing information. If the title IV–E agency fails to collect the information for a data element, the agency must report the data element as blank or missing. The title IV–E agency may not write the extraction code to default to a valid response option if caseworkers did not collect or enter those responses into the information system. This is the case even when there may be a response option for a data element that allows the title IV–E agency to indicate that the information is not yet determined or is unknown. This provision is consistent with ACF's longstanding practice; however, title IV–E agencies have pointed out that there is no official guidance on this issue. Therefore, we wish to state unequivocally that this practice of defaulting is not permitted.
This proposal was first introduced in the 2008 NPRM. Several commenters to the 2008 NPRM indicated that they felt it was not realistic to forbid a title IV–E agency to default or map information that caseworkers did not collect or enter into the information system to a valid response option, and that this proposal would increase caseworker burden. Commenters suggested that this proposal would require the caseworker to not only document the work they completed in a child's case, but also enter data into the case management system to indicate “not yet determined” in order to meet the AFCARS requirement for missing data. Although we considered these comments, the statutory mandate in section 479(c)(2) of the Act requires ACF to assure that any AFCARS data that is collected must be reliable and consistent over time. Permitting the practice of defaulting decreases the reliability of the AFCARS data collected in that data reported may not truly reflect the case-specific information and circumstances for each child in the reporting population. For these reasons, we again propose to prohibit the practice of a title IV–E agency having an information system default to or generate automatic responses.
In paragraph (e), we propose to continue requiring a title IV–E agency to submit its data files to ACF electronically, consistent with ACF's specifications. We currently provide guidance on submission of technical requirements and specifications through official ACF policy and technical bulletins. This proposal is the same as that included in the 2008 NPRM, and we received several comments in response to the 2008 NPRM requesting that ACF provide clarification on the type of technologies it anticipates the title IV–E agencies will use in the report submission process. We considered these comments, but learned through our experience with the existing AFCARS that it is prudent not to regulate the technical specifications for transmitting data. As technology changes, we must keep pace with the most current, practical and efficient transmission methods that will meet title IV–E agency and Federal needs. As such, we will continue to provide guidance through policy and technical bulletins.
In paragraph (f), we propose that title IV–E agencies retain records necessary to comply with the AFCARS reporting requirements outlined in proposed sections 1355.42 through 1355.44. In particular, we propose that the title IV–E agency's retention of AFCARS records is not limited to the
Practically, this means the title IV–E agency must keep applicable records until the child is no longer of an age to be in the reporting populations. Additionally, this means that the title IV–E agency must keep applicable records for a minimum of three years when a child exits the reporting population due to age. This is because we propose that a title IV–E agency keep a child's identification number consistent over time and indicates the child's entire history with the child welfare system. This proposal is the same as in the 2008 NPRM. We received several comments in response to this proposal in the 2008 NPRM that indicated concerns regarding the cost of retaining both electronic and paper records. We considered these comments; however, since a child's information is likely to be contained in an electronic format through the IV–E agency's automated information system and is relatively simple to archive and store, we believe the proposed record retention rules are reasonable. Also, based on our experience through SACWIS and AFCARS reviews, title IV–E agencies currently maintain the child's information in their systems until a child reaches the age of majority.
In paragraph (a), we propose that title IV–E agencies collect and report general information that identifies the reporting title IV–E agency as well as the child in out-of-home care.
The existing AFCARS requirement is for the title IV–E agency to report the sequential or unique number that follows the child as long as he or she is in foster care. We now propose, as we did in the 2008 NPRM, to revise the child record number data element to no longer allow agencies to use sequential numbers for AFCARS. Rather, title IV–E agencies are to use encryption and consistent numbers. The proposed changes to this data element are based on findings from AFCARS reviews, technical assistance, and public comments, described at length in the 2008 NPRM, which indicate that there are circumstances in which title IV–E agencies use different record numbers for the same child. We received a number of comments in response to the 2008 NPRM applauding the inclusion of this data element that meets a long standing need for data about a child's total experience in out-of-home care, as well as several comments seeking clarification and technical assistance around this data element. Through these proposed revisions, title IV–E agencies will keep a child's record number consistent through his or her out-of-home care experience, and utilize encryption to ensure that the child's identity will remain confidential. Ensuring that the child record number is consistent throughout placement changes also will assist in the analysis of NYTD data, which requires States to use a child's AFCARS child record number for identification.
This proposed data element, however, is different from the 2008 NPRM proposal in that we do not propose to retain the exception that a title IV–E agency may provide a new child record number if the child was previously adopted. Initially proposed in the 2008 NPRM, this exception applied to a child who re-enters out-of-home care following an adoption. In addition to the public comments received in response to the 2008 NPRM that support maintaining a consistent identification number throughout a child's out-of-home care experience, we are not retaining this exception so that we may collect information on the experience of
Finally, we would like to note that we are not continuing our 2008 NPRM proposal to require title IV–E agencies to report a unique and encrypted Family Record Number that is associated with the child. We acknowledge that defining “family” for the purposes of this data element may be challenging for title IV–E agencies and understand from commenters to the 2008 NPRM that associating a family record number with each child may be technically difficult for State and Tribal agency systems. We instead propose to collect information in both paragraph (e) and proposed section 1355.44 to aid in the identification of sibling groups, and we discuss these proposals later in this NPRM.
In paragraph (b), we propose that title IV–E agencies collect and report various characteristics of the child in the out-of-home care reporting population.
In paragraph (b)(1)(i), we propose to require title IV–E agencies to report the month, day and year of the child's birth, which is what we proposed in the 2008 NPRM. This proposal differs slightly from the instruction included in existing AFCARS regulations regarding a child's date of birth in that we do not require the title IV–E agency to report an abandoned child's date of birth as the 15th of the month. As detailed in the 2008 NPRM, we are not retaining this requirement because AFCARS reviews revealed that many title IV–E agencies were not aware of this instruction or that workers were reluctant to enter an unknown birth date as the 15th of the month. Therefore, we are requiring that the title IV–E agency always provide the child's actual or estimated date of birth. There were no substantive comments on this data element in response to the 2008 NPRM.
In paragraph (b)(1)(ii), we propose to require the title IV–E agency to report whether or not the child was born in the United States. If the child was born in the United States, indicate “yes.” If the child was born in a country other than the United States, indicate “no.” This is a newly proposed data element and will give us a national picture of how many foreign-born children are in out-of-home care. We specifically request comments from State and Tribal title IV–E agencies on this data element.
The response options proposed are slightly different from those in the existing AFCARS, but are similar to the 2008 NPRM proposal and to those in the NYTD (see 45 CFR 1356.80). One difference in the current proposal is that we allow, in addition to the child and the child's parent(s), legal guardians to determine the child's race. We are including this option to acknowledge that a legal guardian, rather than the child's parent(s), may be the appropriate person to determine the child's race, if that child has been living with him or her. The racial categories of American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander and White listed in proposed paragraphs (b)(3)(i) through (b)(3)(v) are consistent with the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, as described in the 2008 NPRM. There were several public commenters in response to both the 2008 NPRM and 2010 FR Notice that suggested aligning response options regarding a child's race with other Federal data reporting efforts such as NCANDS or NYTD race categories. We agree, and the racial categories proposed both in the 2008 NPRM and the current proposal are aligned with those in NCANDS and NYTD, in addition to being consistent with OMB race and ethnicity standards as described above.
In the 2008 NPRM, we propose that if the child's race is “unknown,” the title IV–E agency is to so indicate in paragraph (b)(3)(vi). However, we now propose to clarify that “unknown” must also be selected if the child or his or her parent(s) or legal guardian(s) cannot communicate the child's race. This response option serves to replace “unable to determine” currently included in AFCARS. A child's race can be categorized as “unknown” only if a child or his or her parent(s) or legal guardian(s) does not actually know the child's race, or the child or his or her parent(s) or legal guardian(s) is unable to communicate the child's race. Using “unknown” to report the fact that the title IV–E agency has not asked the child or his or her parent(s) or legal guardian(s) for the child's race is not an acceptable use of this response option. Further, it is acceptable for the child to identify that he or she is multi-racial, but does not know one of those races. In such cases, the title IV–E agency must indicate the racial classifications that apply and also indicate that a race is unknown.
In the 2008 NPRM we proposed to introduce two new response options, currently not in AFCARS, that we include in our proposal. We propose that if the child's race cannot be determined because the child is “abandoned,” the title IV–E agency must so indicate in paragraph (b)(3)(vii). We provide a definition of abandoned so that we are clear that the term should be used in very restrictive circumstances and not any time a parent may be temporarily unavailable. If a child who was abandoned as an infant later identifies as being of a certain race or multiple races, the title IV–E agency must indicate the applicable race(s), rather than “abandoned.” Finally, we propose that in the situation in which the child or his or her parent(s) or legal guardian(s) “declines” to identify any race, the title IV–E agency must so indicate in paragraph (b)(3)(viii).
In paragraphs (b)(5) and (b)(6), we propose for the first time that the title IV–E agency collect information on health assessment(s) that the child has received while in foster care. We specifically seek information on the date of the child's most recent health assessment and whether the child has been receiving health assessments in a timely manner to ensure that the title IV–E agency is performing health assessments on each child in a foster care placement in accordance with their own established schedule, per the statutory requirements in section 422(b)(15)(A) of the Act. In paragraph (b)(6), if the child has missed a required health assessment in the past but has now received all required health assessments, the title IV–E agency must indicate “yes.” We have learned through technical assistance that many title IV–E agencies are already collecting information regarding the receipt of health assessments for each child in foster care, including the dates of each assessment, and therefore, the inclusion of this proposal should not place significant burden on the title IV–E agency.
ACF believes that it is important to ensure that the title IV–E agency is identifying and addressing the health needs of children in foster care. Proposing to require the title IV–E agency to report health assessment information provides ACF an opportunity to ensure that the title IV–E agency is identifying a child's critical health needs through routine health assessments and that these needs are appropriately addressed and reviewed by a medical professional. For example, if a child is receiving health assessments according to the schedule established by the title IV–E agency per section 422(b)(15)(A) of the Act, we can assume that the medical professional(s) performing the screening will identify and address health needs such as immunization updates, need for services, and appropriate use of medications. We believe that this information will serve as a proxy for other indicators of well-being in addition to providing health assessment information for each child in the out-of-home care reporting population. We welcome comments on this proposal.
If a title IV–E agency indicates that the child has a diagnosed condition, we now propose to require the title IV–E agency to indicate “existing condition,” “previous condition” or “does not apply,” as applicable for each of the categories of conditions in paragraphs 1355.43(b)(7)(i) through (b)(7)(xii). A title IV–E agency must report a diagnosed condition known prior to or during the child's current out-of-home care episode as of the last day of the report period. If the child was diagnosed with a condition prior to entry, and that condition is still applicable to the child when he or she enters foster care, the title IV–E agency must indicate this as an “existing condition.” If the title IV–E agency is aware and obtained a medical summary, then this information should be recorded and reported in AFCARS data as an “existing condition.” Consequently, if a child was diagnosed for a condition that is resolved, the title IV–E agency must report this diagnosis as a “previous condition.” For instance, a child may have been born with a congenital defect that fits in the physically disabled category and has undergone treatment for the condition such that the condition no longer impairs the child's day-to-day motor functioning.
This proposal differs from the 2008 NPRM proposal and existing AFCARS regulations. In the 2008 NPRM we proposed to require a title IV–E agency to indicate “applies” or “does not apply” for each response option. We propose now to require a title IV–E agency to indicate “previous condition” versus “existing condition” specifically to collect ongoing information on conditions that the child was previously diagnosed with, but do not currently apply to the child. We were unable to distinguish between current and prior diagnoses with our 2008 NPRM proposal. In addition, we were unable to capture comprehensive information in current AFCARS regulations and our 2008 NPRM proposal regarding a child's diagnosed health, behavioral and mental health conditions beyond the current AFCARS report period, which this proposal will allow. Collecting additional information regarding conditions for which the child was previously diagnosed but do not exist as current diagnoses will provide increased opportunities for analysis regarding the health and service needs of children in out-of-home care. While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting the health-related data elements such that the information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission for each set of health-related data elements). We also seek comment on whether there are further steps that should be taken in this area to provide usable, accurate, and reliable longitudinal information about a child's health conditions.
We proposed to modify the list of conditions in current AFCARS regulations in the 2008 NPRM that title IV–E agencies currently report, creating separate response options for visually and hearing impaired (combined in current regulation) and adding the following diagnosed conditions as response options anxiety disorder, childhood disorders, learning disability, substance use-related disorder and developmental disability. We propose to make a minor change to the list by renaming “mental retardation” as “intellectual disability,” but we intend to maintain the definition of “mental retardation” that was included in the 2008 NPRM. Our reasoning for making this name change is to conform with the proposed changes to the Diagnostic and Statistical Manual of Mental Disorders-V (DSM–V), the changes made by Public Law 111–256 that solidified the use of “intellectual disability” in Federal law and the increasing focus on cultural sensitivity to the term “mental
In response to the 2008 NPRM, several commenters expressed concern regarding the additional training that caseworkers would require to capture and categorize detailed clinical information, as well as concerns regarding the impact of the new data elements on the SACWIS system and programmatic data elements. However, as we described in the 2008 NPRM, we believe that collecting information pertaining to the health characteristics of a child is important in understanding the length of time children remain in care, their placement needs, number of placements, and, in general, the needs of children being served by the title IV–E agency. In addition, requiring this information is consistent with the provision in section 475(1)(C) of the Act for the title IV–E agency to have a case plan that includes the child's health records and known medical problems. We have observed, through our AFCARS reviews and Technical Assistance provision, that many title IV–E agencies already collect comprehensive information from medical and health assessments for children in foster care, and this information is often incorporated as part of a child's case record.
Finally, consistent with existing AFCARS and detailed in the 2008 NPRM, we propose to continue requiring that the title IV–E agency indicate diagnoses made by a qualified professional as determined by applicable laws and policies of the State or Tribal service area. A qualified professional may include a doctor, psychiatrist or, if applicable in the State or Tribal service area, a licensed clinical psychologist or social worker.
For the purposes of AFCARS, we propose that for a child to be “enrolled” in school he or she must meet the statutory definition of “elementary or secondary school student” at section 471(a)(30) of the Act or participate full-time in college or post-secondary education/training activities. An “elementary or secondary school student” per section 471(a)(30) of the Act means that the child is (A) enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which the institution is located; (B) instructed in an elementary or secondary education program in accordance with a home school law of the State or other jurisdiction in which the home is located; (C) in an independent study elementary or secondary education program, in accordance with the law of the State or other jurisdiction in which the program is located, that is administered by the local school or school district; or (D) incapable of attending school on a full-time basis due to the medical condition of the child, which incapability is supported by regularly updated information in the case plan of the child.
We propose that, for the purposes of AFCARS, enrollment in “post-secondary education or training” refers to full-time enrollment in any post-secondary education or training, including vocational training, other than an education pursued at a college or university. Enrollment in “college” refers to a child that is enrolled full-time at a college or university.
We propose that the title IV–E agency collect and report information on the child's school enrollment for the first time in an effort to learn more about the well-being and stability of children served by title IV–E agencies. ACF agrees with commenters in response to the 2010 FR Notice in the importance of addressing the educational needs of youth in foster care. In addition, some title IV–E agencies already collect information on school enrollment, and consider this information to determine placements for a child entering foster care or to change foster care placements. We propose to collect information in AFCARS on school enrollment in particular to respond to this interest, and to address the new requirement in section 471(a)(30) of the Act (amended by Pub. L. 110–351) that title IV–E agencies must assure in their title IV–E plan that each child receiving a title IV–E payment who has attained the age for compulsory school attendance is a full-time elementary or secondary student, as defined above, or has completed secondary school as described in ACYF–CB–PI–10–11. This statutory requirement is designed to ensure that a child of appropriate age is enrolled full-time or is in the process of enrolling in an elementary or secondary school, if the child has not already completed secondary school.
Further, we propose to collect information on a child's enrollment in college and/or post-secondary education/training for all children in the out-of-home care reporting population, which includes children receiving extended title IV–E assistance beyond age 18. Some commenters to the 2010 FR Notice were resistant to us requiring title IV–E agencies to report additional education data elements; however, the majority of commenters indicated interest in the collection of data in AFCARS that directly addresses a child's educational experience, given the increasing emphasis on education in foster care. The data elements in paragraphs (b)(8) through (b)(12) of this section are proposed, in part, to address this identified need for information, as well as to collect information on children receiving extended title IV–E assistance per the option provided in section 475(8)(B) of the Act. We welcome comments on this proposal.
Title IV–E agencies must report the highest educational level that the child has completed as of the last day of the report period, rather than the child's current educational level. For example, the title IV–E agency should indicate “Kindergarten” if the child has completed Kindergarten or is currently in or about to begin 1st grade. The title IV–E agency must indicate “college” if the child has completed at least one semester of study at a college or university, and indicate “post-secondary education or training” if the child has completed any amount of time in post-secondary education or training (
We seek this information in an effort to learn more about a child's well-being while in out-of-home care. We believe that collecting the highest educational level completed from Kindergarten to college or post-secondary education/training is an appropriate indicator of educational achievement because it is a measure that does not vary greatly among jurisdictions, and is appropriate for all school-age children. The highest level of education completed is relatively simple for a title IV–E agency to collect and report, and there is evidence from AFCARS reviews and technical assistance that at least a few title IV–E agencies already collect this information. Further, we believe that this data element is consistent with the statutory requirement for title IV–E agencies to compile information on health and education records of the child, including information on the child's grade level performance while in foster care (section 475(1)(C)(ii) of the Act) and we believe that it would be beneficial to collect this information in AFCARS so that we can analyze trends in the relationship between a child's age and his or her educational achievement. While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting data on a child's education level such that the information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission associated with each grade level). We also seek comment on whether there are further steps that should be taken in this area to provide useable, accurate, and reliable longitudinal information about a child's educational level.
New school enrollments, for the purposes of AFCARS, are indicated by any school change that occurs prompted by a child's initial placement after entering foster care or any subsequent living arrangement change, whether or not the child was ever previously enrolled in the “new” school. If there is a new enrollment in an elementary or secondary school for the child, we propose to require the title IV–E agency to provide additional information on the reason that prompted this new enrollment in paragraphs (b)(10)(i) through (b)(10)(vii), by indicating whether each condition “applies” or “does not apply.” In paragraph (b)(10)(i), we propose that the title IV–E agency indicate “proximity” if the child enrolled in a new elementary or secondary school because the distance to his or her former school was too far from the child's out-of-home care placement, there was a lack of transportation to the child's former school or proximity was otherwise a factor in the decision for the child to change schools. In paragraph (b)(10)(ii), we propose that the title IV–E agency indicate “district/zoning rules” when the child enrolled in a new school because State/Tribal or local policies, laws or regulations prohibit the child from attending his or her former school as a result of an initial placement into foster care or a subsequent change in living arrangements. In paragraph (b)(10)(iii), we propose that the title IV–E agency indicate “residential facility” when the child enrolled in a new school because he or she formerly attended school on the campus of a residential facility. Facilities of this type could include residential treatment centers, as well as child care institutions. In paragraph (b)(10)(iv), we propose that the title IV–E agency indicate “services/programs” when the child enrolled in a new school to participate in services or programs that are not offered at his or her former school. These services could include, but are not limited to, specialized academic support programs, behavior modification programs, residential education programs or other supportive services that would benefit the well-being of the child. In paragraph (b)(10)(v), we propose that the title IV–E agency indicate “child request” if the child enrolled in a new school because he or she requested to leave the previous school. In paragraph (b)(10)(vi), we propose that the title IV–E agency indicate “parent/legal guardian request” if the child enrolled in a new school because his or her parent(s) or legal guardian(s) requested for the child to leave the previous school. Finally, in paragraph (b)(10)(vii), we propose that the title IV–E agency indicate “other” if the child enrolled in a new elementary or secondary school due to a reason that was not included in paragraphs (b)(10)(i) through (b)(10)(vi).
We seek this information because we are interested in gathering information on the reasons that prompt a change in school enrollment for children upon an initial placement into foster care or as the result of a subsequent change in living arrangements. In addition, we propose the collection of information regarding educational stability to conform to changes introduced in Public Law 110–351 that added a case plan requirement to ensure the development of a plan for the educational stability of a child in foster care as established in section 475(1)(G) of the Act.
Although some commenters to the 2010 FR Notice indicated that collecting this data would increase the burden for caseworkers who have trouble obtaining this information, many commenters to the 2008 NPRM and 2010 FR Notice supported the collection of this
While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting information on educational stability such that information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission for each change in school enrollment). We also seek comment on whether there are further steps that should be taken in this area to provide usable, accurate, and reliable longitudinal information about a child's educational stability.
If the child does not have an IEP or IFSP, the title IV–E agency must indicate “not applicable.” We believe that a current IEP or IFSP indicates that a child has need for or is currently receiving special education instruction or early intervention services, respectively. Agencies are not required to report this information in the current AFCARS. This proposal modifies the “special education” data element proposed in the 2008 NPRM, in which we proposed to require title IV–E agencies to indicate whether the child received special education instruction during the report period. The term “special education” is defined in 20 U.S.C. 1401(29) and means specifically designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability.
Several commenters to both the 2008 NPRM and the 2010 FR Notice suggested collecting information specifically on whether a child has a current IEP or IFSP, rather than general receipt of special education. Other commenters to the 2008 NPRM indicated that there were significant potential data quality issues with reporting on the child's receipt of special education, as this information would require constant updating by caseworkers in title IV–E agencies. Commenters to the 2008 NPRM also were concerned that the needs of and services received by young children in foster care (ages 0–3) were excluded from the 2008 NPRM proposal. Our current proposal is responsive to some of these comments. Further, we propose collecting information on a child's IEP or IFSP as a proxy for receipt of special education because we believe that data on whether the child has an IEP or IFSP is a more reliable measure of determining if a child is receiving special education services. In addition, we believe that information regarding an IEP or IFSP is information often included in a child's case file and is thus easier for a title IV–E agency to obtain than information regarding eligibility for special education instruction.
As outlined in the 2008 NPRM, we propose to collect information on a child's receipt of special education because of our interest in monitoring the well-being of children in out-of-home care and our desire to provide a more comprehensive picture of the educational needs of children in out-of-home care. Further, gathering this information is consistent with the case plan requirements in section 475(1)(C) of the Act. We welcome comments on this proposal.
The information we propose to be collected in this paragraph differs from the information collected in “health, behavioral or mental health conditions” as described in paragraph (b)(7). In paragraph (b)(12), we propose to require the title IV–E agency to indicate which categories of impairment serve as the basis for the child's qualification for early intervention services or special education instruction, which is information taken directly from the child's IEP or IFSP. The response options described in paragraphs (b)(12)(i) through (b)(12)(xii) are unique in that they are federally-defined under IDEA and may not always match the clinical definition(s) of a disability. Further, IDEA does not require conditions present on an IEP or IFSP to be diagnosed by a qualified professional; conditions may be determined through an assessment or other mechanism by various school personnel. In contrast, paragraph (b)(7) describes health, behavioral and mental health conditions that are aligned with clinical definitions and instructs title IV–E agencies to indicate only those conditions that have been diagnosed by a qualified professional (as defined by the title IV–E agency) for the purposes of AFCARS data collection.
We believe that collecting information pertaining to the needs of children receiving special education services is important to understanding the educational performance of children in out-of-home-care. Our proposal to collect information in paragraph (b)(12) on the categories of impairment defined in IDEA also is consistent with the suggestions of several public commenters to the 2008 NPRM who
As in the 2008 NPRM, we also clarify that the title IV–E agency is to include any type of prior adoption in this data element, regardless of whether the adoption was public, private or independent, or out of the United States. Although some commenters to the 2008 NPRM had concerns about the increased burden on caseworkers to collect this information, many commenters to both the 2008 NPRM and 2010 FR Notice supported the collection of this information, indicating that it provided greater detail on the stability of adoptions from foster care.
In the existing AFCARS, we require the title IV–E agency to report the child's age range at the time of the prior finalized adoption. This information, however, was insufficient to determine accurately when the child was previously adopted. Thus, as in the 2008 NPRM, we propose that the title IV–E agency report the actual finalization date to allow us to determine how much time has elapsed between the child's previous adoption(s) and his or her current out-of-home care episode. We did not receive comments on this proposal in the 2008 NPRM.
In the case of an intercountry adoption, the child's parent(s) may have gone through a readoption process in the jurisdiction where they reside in the United States. While in many cases this process is optional for a child whose adoption was finalized in the originating country, we understand that there are some jurisdictions in the United States that require the child to be readopted in his or her jurisdiction of residence. In such cases, we are requiring that the title IV–E agency provide the date that the adoption is considered final in accordance with applicable State or Tribal laws.
For the purposes of AFCARS, “another country” in the definition of “intercountry adoption” means any country other than the United States. As described in the 2008 NPRM, we seek this information primarily in response to the requirements in section 422(b)(12) of the Act, which require the CFSP and Annual Progress and Services Report (APSR) to collect and report certain information on children who are adopted from other countries and who enter the custody of a title IV–E agency as a result of the disruption of an adoption placement or the dissolution of that adoption.
We seek this information to allow us to compile the number of children and jurisdiction(s) from where such children originated to inform permanency planning for children involved in disrupted or dissolved adoptions. We believe that collecting this information in AFCARS will provide more nuanced information on disrupted or dissolved adoptions because we will be able to collect information at the case level, rather than in aggregate per the current CFSP/APSR reporting method. Several commenters to the 2008 NPRM indicated concern regarding the time and burden for caseworkers involved in collecting data on prior adoptions, particularly for prior interstate and intercountry adoptions. However, we believe this information is collected as part of the case assessment of the child and family and that including this data element will provide critical information on international adoptees moving into foster care. Additionally, it will contribute to our knowledge surrounding disrupted or dissolved adoptions.
We propose to collect the jurisdiction of each prior adoption so that we can calculate accurately the dissolution and disruption rates for each jurisdiction in which the child experienced a finalized adoption. Further, collecting information on the country in the case of a prior intercountry adoption will inform our understanding of disrupted or dissolved intercountry adoptions consistent with the requirements in section 422(b)(12) of the Act.
We propose to collect this information because, similar to our proposal to collect information on prior adoption(s), it is important to determine the number of children who have experienced one or more disrupted legal guardianship(s) before entering out-of-home care in order to better understand the potential impact of prior guardianships on permanency planning for these children. Further, because Public Law 110–351 established the option for title IV–E agencies to establish Guardianship Assistance Programs in section 473(d) of the Act, it is important to collect parallel information on both legal guardianships and adoptions.
We seek this information to allow us to compile the number of children and permanency plans for children involved in dissolved or disrupted legal guardianships and jurisdiction from where such children originated. We also believe it is important that title IV–E agencies collect parallel information on prior legal guardianship and adoption placements to inform our understanding of permanency outcomes as title IV–E agencies begin to implement the title IV–E guardianship assistance program, established by Public Law 110–351, in section 473(d) of the Act.
As previously mentioned, we seek this information to parallel information collected on prior adoption placements to inform our understanding of permanency outcomes as title IV–E agencies begin to implement the title IV–E guardianship assistance program established by Public Law 110–351, per section 473(d) of the Act.
Collecting information on minor parents in foster care will allow us to analyze the extent to which having children affects a child's permanency plan. This data element also will be used in conjunction with a subsequent data element in proposed paragraph 1355.43(e)(14) to determine the population of children in out-of-home care who have children for whom they are responsible for and are living with. The combination of information in the two data elements will allow us to determine the number of children in out-of-home care who have children, and the extent to which those children are responsible for the care of their own children.
Public comments in response to the 2008 NPRM highlighted concerns about caseworker burden and the difficulties involved in collecting accurate and
While the existing AFCARS data elements require title IV–E agencies to report the sources of Federal support for the child, this data element differs in that it focuses on both State/Tribal and Federal financial and medical assistance rather than just Federal support. This proposal is identical to the 2008 NPRM proposal, which details that the reason for modifying the existing AFCARS data element is section 479(c)(3)(D) of the Act, requiring us to collect national information on “the extent and nature of assistance provided by Federal, State, and local adoption and foster care programs.”
There were several commenters that responded to both the 2008 NPRM and 2010 FR notice indicating concern about the burden and responsibility of caseworkers in obtaining information from other agencies, as well as the lack of staff and resources to collect this information. However, given the statutory requirement at section 479(c)(3)(D) of the Act, we believe that expanding the scope of the financial and medical assistance data elements to gather more information on sources of assistance received by the child is required under law. This proposed data element, in conjunction with the following data element on receipt of title IV–E foster care maintenance payments in each living arrangement (paragraph(e)), will allow us to gather more comprehensive information on the kinds of financial and medical assistance that support children in out-of-home care. We also believe that most case management information systems currently collect this information.
As detailed in the 2008 NPRM, this data element is used primarily to extract the title IV–E foster care eligibility review samples. Currently, the title IV–E foster care eligibility review sample is drawn from an existing AFCARS data element that requires title IV–E agencies to identify title IV–E foster care maintenance payments as one of many Federal sources of support for the child. We have learned through technical assistance and AFCARS assessment reviews, however, that title IV–E agencies often report this data element incorrectly. A common mistake with the existing data element involves the title IV–E agency indicating that the child is receiving title IV–E foster care maintenance payments when the child has met some title IV–E eligibility requirements but not all (
We are not proposing to retain the following data elements included in the 2008 NPRM, due to further consideration of the value of these elements in relation to the burden these elements would impose on the title IV–E agency. There also was overwhelming opposition to each of these elements in public comments:
Finally, ACF is committed to supporting and protecting lesbian, gay, bisexual, transgender and questioning (LGBTQ) youth in foster care. Research has shown that LGBTQ youth are often overrepresented in the population of youth served by the child welfare system and in the population of youth living on the streets, however there is little or no data on the experiences of these youth.
Despite the value in collecting data on LGBTQ youth in AFCARS there are practical issues associated with incorporating this information into AFCARS data collection. First, we did not receive comments requesting such data in the 2008 NPRM and States have not requested the insertion of such response options. Second, including data elements on LGBTQ youth would potentially mean that data would not be consistent across AFCARS and NYTD. NYTD serves as the only mechanism we have at the federal level to receive comprehensive data on the services a youth receives from the state IV–E agency, as well as the experiences of former foster youth. We included the requirement that the child's record number must be the same in NYTD and AFCARS so that we could link both datasets to have the necessary foundation to conduct case-level analysis on the foster care experiences of youth whose outcomes are reported in NYTD. If response options are not consistent for data elements (
We seek public comment on whether to collect information on LGBTQ youth in AFCARS in light of these practical issues and strategies for identifying LGBTQ youth in the AFCARS reporting population in a manner that permits case-level data analysis between existing federal data collection efforts. Accordingly, we invite comments on the issues of whether we should collect data relating to LGBTQ statuses; what, if any, data should be collected relating to these statuses; what the utility of such data collection might be; what issues would arise if there were inconsistent approaches between AFCARS and NTYD; and how to best address such inconsistencies if a decision is made for expanded data collection relating to LGBTQ statuses.
In paragraph (c), we seek information on the child's parent(s) or legal guardian(s).
These data elements differ from the existing AFCARS in that we currently request the year of birth of the child's caretakers from whom the child was removed (see Appendix A to part 1355, section II, VII.B). The information collected under the existing regulation does not clearly indicate whether the child's caretaker(s) was the parent(s), legal guardian(s), or some other person who was temporarily taking care of the child at the time that the child was removed from home. Because of this lack of clarity, our ability to analyze the existing data is limited.
This proposal is the same as in the 2008 NPRM and we believe that focusing the proposed data elements on the child's parent(s) or legal guardian(s) is more consistent with the statutory mandate to collect demographic information on the biological and adoptive parent(s) of children in foster care (section 479(c)(3)(A) of the Act). By expanding our requirement to gather the year of birth of all parents (
This is a newly proposed element and will give us a national picture of how many parent(s) or legal guardian(s) of children in out-of-home care are foreign-born. We specifically request comments from State and Tribal title IV–E agencies on this data element.
As we stated in the 2008 NPRM, for all data elements related to the termination of parental rights, we propose to clarify that we are seeking information on a child's putative father, if applicable. A putative father is a person who is alleged to be the father of a child, or who claims to be the father of a child, at a time when there may not be enough evidence or information available to determine if that is correct. For the existing AFCARS we have fielded questions on whether title IV–E agencies should provide information on putative fathers. Since the parental rights of any putative fathers may need to be terminated before a child legally is free for adoption in some jurisdictions, we want to be clear that we are interested in collecting information on putative fathers as well.
Finally, we propose to eliminate the existing data element on the family structure of the child's caretakers from whom the child was removed (see Appendix A to part 1355, section II, VII.A) because, as we explained in the 2008 NPRM, we believe that the data element on the child's environment at removal in proposed paragraph (d)(3) will provide sufficient information. Additionally, we do not propose a data element to indicate whether the mother was married at time of the child's birth, as we proposed in the 2008 NPRM because many commenters to the 2008 NPRM, including States, members of the public and academics, were opposed to the collection of this data element for reasons including the limited interest, relevance and utility of the data, particularly for children entering foster care from adoptive homes. We found these reasons compelling and as a result we do not propose to collect this information.
In paragraph (d), we propose to require the title IV–E agency to report information related to the child's removal, regarding each occasion that the child experiences a removal. For each removal that a child experiences, we propose to require the title IV–E agency to report each removal date, the type of environment (household or facility) the child was living in at the time of each removal, the title IV–E agency's authority for placement and care responsibility for each removal and the circumstances surrounding the child and family at the time of each removal.
Currently, title IV–E agencies are required to report AFCARS data only on the child's most recent removal in the report period (see Appendix A to part 1355, section II, III). For the reasons stated throughout this NPRM and in the 2008 NPRM, requiring title IV–E agencies to collect and report longitudinal data will allow us to analyze more accurately the circumstances surrounding a child's entry into and entire experience while in out-of-home care and will provide critical information for Federal efforts to measure outcomes.
In the existing AFCARS, the title IV–E agency is required to report the date of the child's first and latest removal from the child's home and placement into foster care (see Appendix A to part 1355, section II, III.A). The information collected in the existing AFCARS does not allow us to analyze accurately the child's repeat foster care re-entry rate or any associated length of time to re-entry, both of which are currently used for the CFSR. We also cannot analyze the child's entire removal history and we
The existing AFCARS requirement is that the transaction date must be no later than 60 days after the child's removal (see Appendix A to part 1355, section II, III.A). The worker has 60 days to enter the date of the child's removal into the information system under the existing AFCARS requirement. In the 2008 NPRM, we proposed to shorten this timeframe, by proposing that the transaction date must be within 15 days of the child's removal. As we stated in the 2008 NPRM, the removal date is one of the most critical data elements in AFCARS and we have found that higher quality and accurate data results when the removal transaction date is close in time to the date that it describes. Commenters to the 2008 NPRM expressed concern over the 15-day timeframe proposed in the 2008 NPRM, citing that it was a drastic change and could jeopardize casework activity, which the commenters felt should take precedence over data entry. Commenters to the 2008 NPRM also expressed concern that the 15-day timeframe would be difficult to meet for non-SACWIS county-administered agencies that may depend on a paper-based information system. Other commenters to the 2008 NPRM proposed a 30-day timeframe for the removal transaction date giving the worker 30 days to enter the date of the child's removal into the information system. We considered the comments from the 2008 NPRM and decided that a 30-day timeframe is acceptable and represents a balanced approach that meets our need to ensure that removal information is timely and also addresses concerns from the commenters.
We propose the response options to be mutually exclusive, consistent with commenter concerns in response to the 2008 NPRM. For example, we propose that if the child was living in a household that consisted of one of the child's parents and a relative at the time of the child's removal, the title IV–E agency must indicate the response option “parent household.” We propose that the title IV–E agency indicate “justice facility” if, at the time of the child's removal, as indicated in paragraph (d)(1), the child was living in a juvenile justice or adult criminal justice facility where the child is detained. We propose that the title IV–E agency indicate “medical/mental health facility” if, at the time of the child's removal as indicated in paragraph (d)(1), the child was living in a facility such as a medical or psychiatric hospital or residential treatment center. We propose that the title IV–E agency select the response option “other” for environments that are not addressed by the other response options listed (
In the existing AFCARS, the title IV–E agency reports limited information about the child's “principal caretakers,” reporting only the marital status and year of birth of the principal caretaker(s) from whom the child was removed (see Appendix A to part 1355, section II, VII). In the 2008 NPRM, we proposed to broaden the information reported to AFCARS by proposing two new data elements, “environment at removal” and “household composition at removal”, in which the title IV–E agency would have had to report if the child was living in a household at the time of removal and if so, whether the child was living with one or more of a list of persons identified by their relationship to the child. If the child was not living in a household, we proposed to require the title IV–E agency to report whether the child was living in another environment/facility or was abandoned. We now propose to combine the previously proposed data elements ”environment at removal” and “household composition at removal” from the 2008 NPRM and modify the response options.
We received many comments on the data elements ”environment at removal” and “household composition at removal” as proposed in the 2008 NPRM. Some commenters to the 2008 NPRM supported collecting more detailed information on family composition while other commenters felt that the information gathered in the existing AFCARS was sufficient. Some commenters to the 2008 NPRM expressed confusion over whom to report as present in the household because the proposed response options were not mutually exclusive which could lead to an interpretation that multiple people were living in a household which may not be accurate. Other commenters to the 2008 NPRM said that reprogramming their SACWIS systems to capture this information was burdensome and questioned the value of such detailed information at the Federal level.
In the 2010 FR Notice, we solicited feedback, and received many comments, on what data, if any, should be collected from child welfare agencies to provide insight into what environment a child is removed from before entering foster care. Some commenters to the 2010 FR Notice objected to collecting and reporting more detail on a child's household or environment at removal for various reasons, such as that such household or environmental characteristics are better captured in the case plan and aligning the AFCARS data elements with the NCANDS data elements. Other commenters to the 2010 FR Notice expressed support for collecting more information on a child's household or environment at removal, stating that it would be beneficial to
We revisited the previously proposed data elements “environment at removal” and “household composition at removal” from the 2008 NPRM in light of the comments we received to the 2008 NPRM, the 2010 FR Notice and the changes to section 475(8) of the Act, made by Pub. L. 110–351, which allows for the inclusion of children age 18 and older in title IV–E funded foster care. We understand the issues raised by the commenters and decided that combining the data elements will be simpler and less confusing. We believe that this streamlined approach achieves our goal of obtaining greater detail than exists currently in order to support more sophisticated analysis and also addresses commenters concerns about burden and clarity.
Our proposal is generally unchanged from the existing AFCARS requirement (see Appendix A to part 1355, section II, IV.A), and the 2008 NPRM proposal, wherein the title IV–E agency must collect and report its authority for the child's removal from home. We also propose to modify the name of the data element and the definitions for the response options to clarify that the title IV–E agency must report its authority for placement and care responsibility of the child, instead of the “manner of removal from home” as in the existing AFCARS requirement (see Appendix A to part 1355, section II, IV.A).
Our proposal in paragraph (d)(5) is largely the same as the current AFCARS requirement and the 2008 NPRM. In the existing AFCARS, the title IV–E agency is required to report all of the “actions or conditions” associated with the child's most recent removal from a short list of response options (see Appendix A to part 1355, section II, IV.B). Similar to the 2008 NPRM, we propose to retain the current feature of AFCARS to require the title IV–E agency to indicate all of the circumstances that are associated with each removal; however, we propose an expanded list of circumstances which we have modified from the 2008 NPRM proposal. We propose the term “associated with removal” to mean all circumstances that are present at the time of each removal, in addition to the circumstances related to the child being placed into foster care.
We propose that the title IV–E agency report an expanded list of child and family circumstances from the list in the existing AFCARS; however, we modify the circumstances that were proposed in the 2008 NPRM based on the comments in response to the 2008 NPRM and 2010 FR Notice and the changes to section 475(8) of the Act allowing children age 18 or older to receive title IV–E foster care maintenance payments. The definition for each circumstance is described in paragraphs (d)(5)(i) through (d)(5)(xxvii). Commenters to both the 2008 NPRM and 2010 FR Notice suggested additional circumstances and some of the suggestions from the 2010 FR Notice are included in this proposal (
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
In the existing AFCARS, abandonment is defined as leaving a child alone or with others and the caretaker does not return or make his or her whereabouts known (see Appendix A to part 1355, section II, IV.B). The major difference between the proposed definition and the existing AFCARS definition is that this proposal only includes as abandonment the circumstance where the identity of the parent(s) or legal guardian(s) is unknown. That is not always the case under the current AFCARS, since the definition of abandonment is broader and encompasses both the situations in which the title IV–E agency knows the
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
In the existing AFCARS, the title IV–E agency is required to report running away and other child behavior problems resulting in adjudication together in the response option “child behavior problem” (see Appendix A to part 1355, section II, IV.B). In the 2008 NPRM, we proposed to require that title IV–E agencies report as a separate circumstance at removal whether the child was alleged or found to be a status offender or whether the child was alleged or found to be an adjudicated delinquent so that we can categorize clearly a behavioral problem that has already been identified. Commenters in response to the 2008 NPRM objected to our proposal to report juvenile justice
(xxi)
(xxii)
(xxiii)
(xxiv)
In the existing AFCARS, the title IV–E agency is required to report the caretaker's limited mental capacity as part of the response option “caretaker's inability to cope” (see Appendix A to part 1355, section II, IV.B). In the 2008 NPRM, we proposed to collect information on the caretaker's limited mental capacity as a separate circumstance associated with the child's removal because we believe low cognitive functioning to be distinct from low emotional functioning. Commenters in response to the 2008 NPRM questioned how the limited mental capacity of a caretaker should be diagnosed and expressed concern that collecting and reporting this information would shift the attention of workers away from child protective services. Commenters in response to the 2010 FR Notice supported collecting a wide range of circumstances that may be present at removal, including a caretaker's limited mental capacity as a separate circumstance associated with the child's removal. As we considered the comments to both the 2008 NPRM and the 2010 FR Notice, we further examined the need for a separate response option. The Office of Planning, Research and Evaluation within ACF reported data on caregiver risk factors at the time of investigation in the April 2005
(xxv)
(xxvi)
(xxvii)
We would like to note that we are not continuing our proposal to include the data element for “biological parents' marital status” and two child and family circumstances, “juvenile justice” and “disrupted intercountry adoption,” that were proposed in the 2008 NPRM due to the overwhelming opposition to the proposals from commenters. In general, commenters to the 2008 NPRM questioned the value of collecting this information in AFCARS; therefore we do not propose to collect this information.
Finally, the plight of children who enter foster care because a parent is detained for immigration or deported has recently come to our attention and we are considering whether to expand the list of child and family circumstances associated with removal to include this information. We seek public comment on this issue, specifically regarding the extent to which this is an issue in States and Tribes, to help us determine the utility and appropriateness of including this information in AFCARS data collection, as well as suggestions for specific language for the circumstance.
In paragraph (e), we propose that the title IV–E agency collect and report information on each of the child's living arrangements for each out-of-home care episode, including information about the providers who are caring for the child, demographics on the child's foster parent(s), information on the child's sibling(s) and the sources of Federal assistance that support the child's room and board in each living arrangement.
In general, we propose to expand the information that we collect in the existing AFCARS by requiring that the title IV–E agency report longitudinal information for most of the data elements in paragraph (e) of this section. We propose, as we did in the 2008 NPRM, to require the title IV–E agency to report the date and type of each of the child's living arrangements for each out-of-home care episode and to report demographics on each of the child's foster parent(s), such as year of birth, race, ethnicity and the child's relationship to his or her foster parent(s). We also propose, as we did in the 2008 NPRM, to expand the types of living arrangements in which the child may be placed to include a variety of placement settings, such as therapeutic foster family homes, group homes that may provide shelter care or be operated by staff or a family, supervised independent living and juvenile justice facilities. In the existing AFCARS, the title IV–E agency is required to report four data elements on the child's current placement setting as of the end of the report period, including the date that the child was placed into the current placement setting, the type of placement setting and whether the placement is out of the State, and provide the number of the child's placement settings during the child's current foster care episode (see Appendix A to part 1355, section II, III.B and V). The information that the title IV–E agency is currently required to report to AFCARS does not provide any detailed information on the type of foster home or facility in which the child is currently living or previously lived. Many stakeholders have long urged us to consider amending the AFCARS regulations with the goal of gathering longitudinal information for children who are in out-of-home care, such as where the child lives for the duration of his or her stay in out-of-home care. We also understand that many title IV–E agencies already have the capability and actively track each of the child's living arrangements. We believe that collecting longitudinal information on each of the child's living arrangements will enhance our analysis of the child's entire experience in out-of-home care and will allow for improved tracking and analysis related to the stability of the child's placements and whether children are moving from one living arrangement to another in support of their permanency plans and overall well-being. We also believe that collecting this expanded information
We propose that the title IV–E agency collect and report the information in paragraph (e) for each child in the out-of-home care reporting population regardless of the type of setting in which the child lives, including if the child is placed into a non-foster care setting, such as a hospital or juvenile justice facility, after entering the out-of-home care reporting population. Commenters in response to the 2008 NPRM and the 2010 FR Notice expressed a concern with reporting information on children who are in non-foster care settings, such as juvenile justice facilities. We considered these comments, but did not make changes in paragraph (e) based on those comments because we believe that the title IV–E agency will have placement information for the children who are in their placement and care responsibility.
We propose that the title IV–E agency report the date that the child is placed by the title IV–E agency in each living arrangement. For a child who ran away, the title IV–E agency must report the date that the title IV–E agency considers the child to have run away. For a child whose whereabouts are unknown by the title IV–E agency, the title IV–E agency must report the date the child's whereabouts became unknown to the title IV–E agency. For a child who is placed at home with his or her parent(s) or legal guardian(s) under the placement and care responsibility of the title IV–E agency, the title IV–E agency must report the date that the child returned home. We are interested in collecting runaway and whereabouts unknown dates in order to calculate the actual time the child is absent from the provider or facility without permission and the title IV–E agency must continue to report on each child in the out-of-home care reporting population until the title IV–E agency's placement and care responsibility ends (see section 1355.41). In the case of a child who is already living in a living arrangement and remains there when the title IV–E agency receives placement and care responsibility of the child, the title IV–E agency must report the date of the VPA or court order providing the title IV–E agency with placement and care responsibility for the child, rather than the date the child began living in the arrangement. An example of this might be a child who was living with a relative prior to a constructive removal who continues to reside in the relative's house after entering foster care.
In paragraphs (e)(2) through (e)(4), we propose that the title IV–E agency indicate the type of living arrangement for the child, for each living arrangement reported in paragraph (e)(1) of this section. In the existing AFCARS regulations, the title IV–E agency is required to report the child's current placement setting from eight options: Pre-adoptive home, relative or non-relative foster family home, group home, institution, supervised independent living, runaway and trial home visit (see Appendix A to part 1355, section II, V.A). We have found that these options, which were intended to be mutually exclusive, do not capture fully the range of living arrangements in which the child may be placed. We believe that more detailed information is needed to better understand the specific types of homes and facilities where children live while in out-of-home care. We essentially propose, as we did in the 2008 NPRM, to split the existing AFCARS data element (see Appendix A to part 1355, section II, V.A) into three data elements and to expand the data that is collected. We propose in paragraph (e)(2) to require the title IV–E agency to report whether each of the child's living arrangements is a foster family home. If the title IV–E agency reports that the child is living in a foster family home, then we propose in paragraph (e)(3) that the title IV–E agency report the type of foster family home by indicating whether each of the six types “applies” or “does not apply.” If the title IV–E agency reports in paragraph (e)(2) that the child is not living in a foster family home, then we propose in paragraph (e)(4) that the title IV–E agency report one type of other living arrangement from thirteen options. We believe that this new approach to capturing information on each of the child's living arrangements will provide us with a more complete view of the child's actual placements. Commenters in response to the 2008 NPRM were generally supportive of our approach.
We clarified the definitions of the living arrangement options from the 2008 NPRM in response to commenters requesting clearer definitions and to conform to the revised out-of-home care reporting population which includes children who are placed in foster care who subsequently are placed into non-foster care settings. Although in the 2008 NPRM we proposed additional types of living arrangements not currently in AFCARS, our proposal has gone further to include additional types not proposed in the 2008 NPRM to account for the proposed reporting population definition. Each data element is described below in paragraphs (e)(2) through (e)(4).
This data element is the same as the one proposed in the 2008 NPRM, however, based on comments to the 2008 NPRM, we now propose to add “kin family foster home” as an option. In the “current placement setting” data element in the existing AFCARS, the title IV–E agency can choose among three options related to foster family homes which were designed to be mutually exclusive: pre-adoptive home, relative foster family home (which could be licensed or not) and a licensed non-relative foster family home (see Appendix A to part 1355, section II, V.A). The options and definitions in the existing AFCARS provided us with limited analytical possibilities and did not adequately capture the specific foster family home in which the child is living. For example, we could not determine whether children were placed in pre-adoptive homes that were also relative homes. Further, we did not know the extent to which children were placed in licensed foster family homes. We believe that requiring the title IV–E agency to indicate separately all possible characteristics of a foster family home will allow us and title IV–E agencies to see the trends that may exist among foster homes, particularly now that we have added “kin family foster care” as an option. Commenters in response to the 2008 NPRM were generally supportive of the expanded list of proposed foster family home types. Each response option is discussed below.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
We propose to continue to include group homes as a type of living arrangement; however, as proposed in the 2008 NPRM, we propose to require
Determining whether a child is placed into a family operated or a staff operated group home will provide us with further insight into the child's living arrangement. In the existing AFCARS regulation, “group home” is defined as a small, licensed or approved home providing care in a group setting that generally has from seven to twelve children (see Appendix A to part 1355, section II, V.A). We have found that this definition is too limiting and does not reflect the actual group home living arrangements available to children. Therefore, our proposed definitions do not include a specific number of children who reside in the group setting. We do not believe it is necessary to determine whether shelter care group homes are operated by a staff or family.
We propose, as we did in the 2008 NPRM, to add “residential treatment center” as a type of living arrangement and define it as a facility that is for the purpose of treating children with mental health or behavioral conditions, including psychiatric residential treatment centers. In the existing AFCARS regulation, we direct agencies to report residential treatment facilities within the larger category of “institutions,” rather than as a separate option (see Appendix A to part 1355, section II, V.A). We propose to make this a separate and distinct option so that we may identify a child's living arrangement with more specificity and detail.
We propose, as we did in the 2008 NPRM, to identify “child care institution” as a separate living arrangement type. In the existing AFCARS, a living arrangement of a child care institution is included in the current AFCARS definition of “institution,” which is specific enough to depict accurately the type of living arrangements in which children reside (see Appendix A to part 1355, section II, V.A). We propose to define a “child care institution” as a private facility, or a public child care facility for no more than 25 children, which is licensed by the State or Tribal licensing/approval authority. We propose to exclude other institutions whose primary purpose is to secure children who are determined to be delinquent from the definition of a “child care institution,” such as detention facilities, forestry camps and training schools, consistent with section 472(c)(2) of the Act.
We propose to identify separately a child care institution that is designated by the State or Tribal licensing/approval authority as a shelter care facility. As in the 2008 NPRM, we propose this as a distinct option so that we can examine the use of shelter care as discussed previously.
We propose to retain the existing “supervised independent living” option in AFCARS but modify the definition to be consistent with the revised reporting population definition proposed in section 1355.41. In the existing AFCARS regulation, the definition of “supervised independent living” is an alternative transitional living arrangement where the child is under the supervision of the title IV–E agency, is receiving financial support from the child welfare agency and is in a setting which provides the opportunity for increased self care (see Appendix A to part 1355, section II, V.A). We propose to modify the definition for the “supervised independent living” option to require the title IV–E agency to report living arrangements where a child of any age is under the placement and care responsibility of the title IV–E agency and living independently in a supervised setting.
We propose, as we did in the 2008 NPRM, that the title IV–E agency indicate whether a child's living arrangement is a juvenile justice facility. We propose to define “juvenile justice facility” as a secure facility or institution where alleged or adjudicated juvenile delinquents are housed while under the title IV–E agency's placement and care responsibility. This definition is broad enough to include all types of juvenile facilities, whether they are locked or employ some type of treatment component.
We also propose, as we did in the 2008 NPRM, to add “medical or rehabilitative facility” as a new living arrangement type in AFCARS. We propose to define a “medical or rehabilitative facility” as one where a child receives medical or physical health care. This could include a hospital or facility where a child receives intensive physical therapy, but not primarily psychiatric care.
We propose that the title IV–E agency report whether a child is in a “psychiatric hospital.” We propose to define “psychiatric hospital” as one where the child receives emotional or psychological health care and is licensed or accredited as a hospital. This option is not currently included in the existing AFCARS regulation, and replaces the “psychiatric facility” option we proposed in the 2008 NPRM that included both psychiatric hospitals and residential treatment centers. We received comments to the 2008 NPRM seeking clarification on the definition of psychiatric facility and in response we modified the option to only include psychiatric hospitals that are licensed or accredited as a hospital. Psychiatric residential treatment centers should not be reported under this option. A child in a psychiatric residential treatment center should be included under the residential treatment center option.
We propose, as we did in the 2008 NPRM, to define the option of “runaway” as when the child has left, without authorization, the home or facility where the child was placed. The current living arrangement definition of runaway that is in the existing AFCARS refers to a child who has “run away from the foster care setting” (Appendix A to part 1355, section II.V). We propose to broaden the definition so that it is clear that this runaway option must be indicated any time a child has left a living arrangement without authorization.
We propose to add for the first time a new option of “whereabouts unknown.” We propose to define “whereabouts unknown” as when the child is under the title IV–E agency's placement and care responsibility, but is not in the physical custody of the title IV–E agency or person or institution with whom the child has been placed, the whereabouts of the child are unknown and the title IV–E agency does not consider the child to have run away. This is a new option not proposed in the 2008 NPRM or required to be reported in the existing AFCARS regulation. We propose it now based on stakeholder feedback we received in response to the 2008 NPRM asking to add a separate option for a child whose whereabouts are unknown. With this new response option, ACF will be able to provide information on children who are in the title IV–E agency's placement and care responsibility but whose whereabouts are unknown.
Finally, we propose to add for the first time a new option of “placed at home.”
We also believe that the information reported in this data element, in combination with the information reported in paragraph (e)(6), will provide information on the extent to which title IV–E agencies are maximizing all potential placement resources for children who are in out-of-home care. Our modified proposal also includes Tribal title IV–E agencies in accordance with section 479B of the Act.
Federal law is clear that delays in adoptive interjurisdictional placements are prohibited (section 471(a)(23) of the Act). Our analysis of existing AFCARS data demonstrates that it takes much longer to achieve permanency for children who are placed out-of-State compared to children whose placements are intrastate. We hope that expanding our collection of this information will support more sophisticated analyses of placements that are out of the State, Tribal service area or country. We also believe that requiring title IV–E agencies to identify the specific location of the child's placement that is out of the State, Tribal service area or country is consistent with the statutory requirement that a title IV–E agency have a State or Tribal wide information system from which the title IV–E agency can readily identify the location of a child in foster care, or who has been in foster care in the preceding 12 months (section 422(b)(8)(A)(i) of the Act).
In paragraphs (e)(8) through (e)(13), we propose to collect information on the child's siblings who are in out-of-home care under the placement and care responsibility of the title IV–E agency or who exit the placement and care responsibility of the title IV–E agency to a finalized adoption or legal guardianship. We propose two new data elements designed to obtain the total number of the child's siblings who are in out-of-home care under the placement and care responsibility of the title IV–E agency or who exit the placement and care responsibility of the title IV–E agency to a finalized adoption or legal guardianship and four new data elements where the title IV–E agency must report which siblings the child is placed with within the same living arrangement.
In the existing AFCARS, we do not have a way to know which children who are in out-of-home care are siblings and we do not have the ability to track whether siblings are placed together. We propose that the title IV–E agency report on a child's siblings in paragraphs (e)(8) through (e)(13) of this section in order to learn more about sibling group placement in out-of-home care, adoption and legal guardianship homes and to comply with the mandate in section 471(a)(31)(A) of the Act. Under this statutory provision, the title IV–E agency must make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive placement,
In the 2008 NPRM, we proposed to require title IV–E agencies to indicate the total number of siblings who are also in the title IV–E agency's placement and care responsibility and are placed with the child in the same living arrangement as of the last day of each of the child's living arrangements. Our 2008 NPRM proposal did not include reporting the child's siblings who exited the reporting title IV–E agency's placement and care responsibility to a finalized adoption or legal guardianship. Commenters to the 2008 NPRM supported our proposal to collect the total number of the child's siblings who are themselves in out-of-home care, but suggested that we also collect the child record numbers of the child's siblings, stating that it would be more useful to accurately track which children are siblings and whether they are placed together. We agreed with the commenters and revised our proposal accordingly. We also revised our proposal to include reporting whether the child has and lives with any siblings who exited the reporting title IV–E agency's placement and care responsibility to a finalized adoption or legal guardianship. We propose the new data elements in paragraphs (e)(8) through (e)(13) in order to learn more about sibling group placement.
We received comments in response to the 2008 NPRM recommending that title IV–E agencies report the child of a minor parent only if the minor parent's child is also in foster care. We considered the comments but did not make changes to this proposal because we want to know when a minor parent who is in out-of-home care is responsible for the care of his or her own child(ren) who is living with him or her. Minor parents and their children may differ from other children who are in out-of-home care and may require enhanced resources from the child welfare system,
We propose to require the title IV–E agency to indicate “married couple” if the foster parents are considered to be united in matrimony according to applicable laws, including common law marriage where provided by applicable laws. We propose to require the title IV–E agency to indicate “unmarried couple” if the foster parents are living together as a couple, but are not united in matrimony according to applicable laws. We propose to require the title IV–E agency to indicate “separated” if the foster parent is legally separated, or living apart from his or her spouse, but remains legally married. We propose to require the title IV–E agency to indicate “single female” if the foster parent is a female who is not married (including common law marriage) and is not living with another individual as part of a couple. We propose to require the title IV–E agency to indicate “single male” if the foster parent is a male who is not married (including common law marriage) and is not living with another individual as part of a couple. If the title IV–E agency indicates the option “married couple” or “unmarried couple,” the title IV–E agency must complete the data elements for the second foster parent in paragraphs (e)(20) through (e)(22) of this section; otherwise the title IV–E agency must leave these data elements blank. Consistent with the existing AFCARS requirement and the 2008 NPRM proposal, we do not propose a separate category for a foster parent who is a widow or widower. Such individuals must continue to be reported according to his or her current marital/living situation.
Title IV–E agencies are not currently required to report the specific type of relationship between the child and his or her foster parent(s). Through the information reported in the existing AFCARS, we only know whether a child is placed in a relative foster home, but we do not know the specific relative with whom the child is placed. We believe that it is essential to obtain this information, primarily so we can understand the trends surrounding relative, and particularly grandparent and paternal relative, care of children who enter foster care.
In the existing AFCARS regulation, the title IV–E agency is required to estimate a year of birth if the foster parent(s) exact birth date is unknown (see Appendix A to part 1355, section II, IX.B). We propose, as we did in the 2008 NPRM, to remove this instruction because we expect that the title IV–E agency will always have the exact year of birth for a foster parent. This is basic demographic information about the child's provider that is required to be collected in AFCARS per section 479(c)(3)(A) of the Act.
Our proposal is unchanged from the 2008 NPRM where we proposed to modify the existing AFCARS requirement (see Appendix A to part 1355, section II, IX.C) in order to be consistent with the OMB standards for collecting information on race. Currently in AFCARS, we explain that an individual's race is determined by how he or she defines him or herself or by how others define him or her. Consistent with the 2008 NPRM proposal, the title IV–E agency must allow the foster parent(s) to determine his or her own race. If the foster parent(s) does not know his or her race, the title IV–E agency must indicate that this information is not known (see paragraphs (e)(18)(vi) and (e)(21)(vi)). It is acceptable for the foster parent(s) to identify with more than one race, but not know one of those races. In such cases, the title IV–E agency must indicate the racial classifications that apply and also indicate that one of the races is not known. If the foster parent(s) declines to identify his or her race, the title IV–E agency must indicate that this information was declined (see paragraphs (e)(18)(vii) and (e)(21)(vii)).
Our proposal is the same as the existing AFCARS requirement (see Appendix B to part 1355, section II, VI.C), the 2008 NPRM and other sections of this proposed rule where demographic information on ethnicity is collected. The proposed data element is similar to one in the existing AFCARS requirements (see Appendix A to part 1355, section II, IX.C) and unchanged from the 2008 NPRM. Similar to the data elements on race in paragraphs (e)(18) and (e)(21), the definitions in paragraphs (e)(19) and (e)(22) also are consistent with the OMB race and ethnicity standards. Consistent with the 2008 NPRM proposal, the title IV–E agency must allow the foster parent(s) to determine his or her own ethnicity. If the foster parent(s) does not know his or her ethnicity, the title IV–E agency must indicate the option “unknown.” If the foster parent(s) refuses to identify his or her ethnicity, the title IV–E agency must indicate that the information was declined.
We specified in paragraphs (e)(23)(i) through (e)(23)(iii) that the title IV–E agency must report a funding source of title IV–E foster care, title IV–E adoption subsidy, or a title IV–E guardianship subsidy when the child is eligible for such funds. “Eligible” means that the child satisfies fully all of the criteria for the title IV–E foster care maintenance payments program in section 472 of the Act (including requirements for a placement in a licensed or approved foster family home or child care institution or supervised independent living), for the adoption assistance program in section 473 of the Act (including requirements for the child to be placed in a pre-adoptive home with an adoption assistance agreement signed by all parties in effect), or for the guardianship assistance program in section 473 of the Act. We chose to specify that the child be eligible for such funds, rather than funds paid on behalf of the child because title IV–E agencies are reimbursed by the Federal government for allowable title IV–E foster care maintenance, adoption assistance, and guardianship assistance payments. Title IV–E agencies submit claims for their allowable costs after they have made payments on behalf of eligible children, sometimes months after the fact. The timing of reimbursement for title IV–E payments and submitting AFCARS data may be such that a child may not have actually received a Federal payment at the time that we are requesting such information but the child is eligible for a title IV–E foster care maintenance, adoption assistance, or guardianship assistance payment.
As in the 2008 NPRM, we tied the reporting of this information to a particular day within each living arrangement. If the child is placed in two different living arrangements within the same AFCARS report period, the title IV–E agency must report the Federal funds supporting the child's maintenance on the last day that the child was in the first living arrangement and, if the second living arrangement continues past the last date of the report period, the title IV–E agency must report the Federal funding sources on the last day of the report period. We propose to focus on the Federal funds provided on a particular day within a living arrangement so that we can better analyze the sources of Federal funds supporting children's maintenance. Finally, although some commenters to the 2008 NPRM suggested that collecting financial information was not necessary, we propose to collect this information because section 479(c)(3)(D)
Our proposal is unchanged from the 2008 NPRM but modifies the existing AFCARS regulation which requires title IV–E agencies to report the total amount of the monthly foster care payment, regardless of the source (
As we understand it, information systems are designed such that the daily rate is readily available for reporting. Therefore, this aspect of the proposal should be less of a burden on title IV–E agencies and in line with how their information systems are structured. We also propose to remove the requirement that is in the existing AFCARS for the title IV–E agency to report the amount of the payment only when a title IV–E payment is made on behalf of a child regardless of the source. We propose this change because we primarily are interested in knowing about the amount of funds under the title IV–E foster care and adoption assistance programs, since these are the two largest programs for which we have fiscal oversight responsibility.
Finally, we would like to note that we are not continuing our proposal from the 2008 NPRM to include the data elements “language of foster parent(s)” and “language preference of foster parent” due to strong opposition in public comments to the 2008 NPRM.
In paragraph (f), we propose that the title IV–E agency collect and report information related to permanency planning for children in foster care. In general, we propose to expand the information that we collect by requiring title IV–E agencies to report longitudinal information for most of the data elements in paragraph (f). We also propose to modify the permanency plan options and request new information on the reasons for changing the child's permanency plan; the child's concurrent permanency plan; the child's juvenile justice involvement; caseworker visits with the child and the child's transition plan. In the existing AFCARS, the title IV–E agency is required to report one data element on the child's most recent case plan goal, which does not provide any detailed information about permanency planning for children in foster care. We propose eleven additional data elements that will enhance our analysis of the child's entire out-of-home care experience and will better inform the title IV–E agency's performance in permanency planning and achieving positive outcomes for children in foster care. We also believe that collecting this additional information will enhance our data analysis for the CFSRs or other Federal monitoring efforts. We propose to update the language from the existing AFCARS regulation to use the term “permanency plan” instead of the term “case plan,” which is primarily a name change consistent with the terminology used throughout titles IV–B and IV–E of the Act. We used the term “permanency plan” in the 2008 NPRM and 2010 FR Notice and did not receive any comments.
Some aspects of our proposal are different from the 2008 NPRM and the existing AFCARS regulation. One difference is that we do not propose to collect ongoing child and family circumstances at the development of the initial permanency plan and at the time of each permanency hearing, or annually. In the 2008 NPRM, we proposed a list of ongoing child and family circumstances identical to the expanded list of circumstances proposed in paragraph (d). Commenters to the 2008 NPRM and 2010 FR Notice were overwhelmingly opposed to our proposal to collect child and family circumstances at any point after the child's removal (see section 1355.43(d)). Primarily, the commenters questioned the value of collecting such information after the time of the child's removal and strongly felt that the burden associated with making such vast programmatic changes and the time for workers to input such data would not positively impact the outcomes for children in foster care. Thus, based on such opposition in the comments, we decided against a proposal to collect ongoing information on child and family circumstances after the time of the child's removal. We propose instead to collect information on the reasons the child's permanency plan may change, which we explain further in paragraph (f)(4).
We propose that the title IV–E agency indicate “reunify with parent(s) or legal guardian(s)” if the plan is to keep the child in out-of-home care for a limited time and the title IV–E agency is working with the child's family to reunify the child with the parent(s) or legal guardian(s) in a stable family environment. Our proposed definition for this permanency plan option is the same as the 2008 NPRM, wherein we explained that we modified the existing AFCARS definition to replace the term “principal caretaker” with “legal guardian.” We are expanding the “reunify with parent(s) or legal guardian(s)” option to include situations when the child reunifies with a non-custodial parent or legal guardian, rather than the parent or legal guardian from whom the child was removed.
We propose to require the title IV–E agency to indicate “live with other relatives” if the title IV–E agency is working towards the child living permanently with a relative(s), other than the child's parent(s) or legal guardian(s). Our proposal differs from the existing AFCARS definition in that we propose to exclude relative guardianship from the definition and remove the instruction that the relatives are “other than the ones from whom the child was removed.” This instruction is unnecessary given the changes to the “reunify with parent(s) or legal guardian(s)”option because we are no longer limiting the “reunify with parent(s) or legal guardian(s)” option to the person(s) from whom the child was removed. Our current proposal is the same as in the 2008 NPRM and we did not receive comments on this permanency plan option.
We propose to require the title IV–E agency to indicate “adoption” if the plan is to facilitate the child's adoption by the child's relatives, foster parent(s), kin or other unrelated individuals. Our proposal differs from the existing AFCARS requirement and the 2008 NPRM in that we propose to modify the adoption permanency plan option definition to specifically include adoption by kin. Commenters to the 2008 NPRM requested the addition of kin in a number of data elements in AFCARS and therefore we include it here.
We propose to require the title IV–E agency to indicate “guardianship” if the plan is for the title IV–E agency to establish a new legal guardianship arrangement for the child. This includes legal guardianships established with a relative or a non-relative. We propose to modify the existing AFCARS definition and the 2008 NPRM proposal based on the 2008 NPRM comments. In the existing AFCARS, the permanency plan option of “guardianship” applies to non-relatives whereas relative guardianship is included in the definition of “live with other relatives.” In the 2008 NPRM, we proposed separate response options for relative and non-relative guardianship permanency plans. Commenters to the 2008 NPRM requested that we combine the “relative guardianship” and “non-relative guardianship” permanency plan options because they stated that it would be burdensome to reprogram information systems to comply with this and did not see the value of making such a distinction in AFCARS. We agreed and now propose one response option to capture the child's permanency plan of legal guardianship.
We propose to require the title IV–E agency to indicate “planned permanent living arrangement” if the plan is for the child to remain in foster care until the title IV–E agency's placement and care responsibility ends. The title IV–E agency must only select “planned permanent living arrangement” consistent with the requirements in section 475(5)(C)(i) of the Act. This response option is not in the existing AFCARS and we are modifying our 2008 NPRM proposal. In the 2008 NPRM, we proposed two response options, “planned permanent living arrangement” and “independent living” to replace the response options in the existing AFCARS “long term foster care” and “emancipation”, respectively. Both “long term foster care” and “emancipation” in the existing regulations encompass children with a plan to remain in foster care until emancipation.
Over the years, States have sought out technical assistance and guidance on how to distinguish between the two response options. In the 2008 NPRM, we attempted to rectify this issue by renaming the existing AFCARS response option “long term foster care” as “planned permanent living arrangement” and replacing “emancipation” with a new response option of “independent living” defined as situations when the plan was for the child to live independently and the child was receiving or eligible to receive independent living services. Commenters to the 2008 NPRM and 2010 FR Notice supported our proposal to include a response option for “planned permanent living arrangement” but felt that this was more than a name change and requested that we modify the definition to be more consistent with practice in the field. Commenters to the 2008 NPRM were overwhelmingly opposed to our proposal to include “independent living” as a permanency plan, stating that in practice, “independent living” refers to services that are provided to children who may emancipate from foster care and that these services should be provided no matter what the child's permanency plan is. We reexamined the existing response options in AFCARS and those proposed in the 2008 NPRM in the context of these comments, practice in the field and the statutory requirement at section 475(5)(C)(i) of the Act. Section 475(5)(C)(i) requires that the title IV–E agency rule out reunification, adoption and legal guardianship before selecting a permanency plan for a planned permanent living arrangement. We understand that in practice, when a child's plan is not to return to his or her family, or achieve guardianship or adoption, the title IV–E agency attempts to place a child with a committed foster care provider and provide the child with the skills needed for independence. The child may be placed with someone who has made a formal commitment to the child and may receive the services or not based on a variety of factors. Therefore, we believe that other monitoring efforts that examine casework, such as the current CFSR, are better tools in which to measure title IV–E agency performance in permanency planning for children who may emancipate from foster care. We believe that our current proposal
Finally, we propose to require the title IV–E agency to report if the child's permanency plan is not yet established. Our proposal is the same as in the 2008 NPRM, which is only a name-change modification from the existing AFCARS response option titled “case plan goal not yet established.” We did not receive comments in response to the 2008 NPRM on this response option.
The title IV–E agency is not required to report information on concurrent permanency planning in the existing AFCARS. Requiring information on concurrent permanency planning was a new proposal in the 2008 NPRM and we received many comments in response to this proposal and the 2010 FR Notice. Some commenters to both the 2008 NPRM and 2010 FR Notice supported our proposal stating that it would help to comprehensively understand the permanency planning that is done for a child. Other commenters to both the 2008 NPRM and 2010 FR Notice questioned the value of the information and objected to requiring this information citing worker burden and noting that CFSR results indicate concurrent permanency planning was linked to positive results in only a few States. We considered the comments, but we did not make changes. Concurrent permanency planning has been encouraged since the passage of the Adoption and Safe Families Act (ASFA) in 1997 and we understand from the CFSRs that many States engage in concurrent permanency planning although we also recognize that it is not implemented on a consistent basis. We note that there are different ways to view and utilize concurrent permanency planning and we believe that it is important to capture the extent to which children have concurrent permanency plans so that we can better understand if, when and how concurrent permanency planning is used.
We propose this data element instead of continuing our proposal from the 2008 NPRM to collect additional information on ongoing child and family circumstances, which was overwhelmingly opposed in the comments to the 2008 NPRM and 2010 FR Notice. Permanency plans may or may not change throughout a child's duration in foster care; however, knowing the reasons for changes in the child's permanency plan will give us a more comprehensive understanding of the permanency planning that is done for a child in out-of-home care. We explain the response options for this data element in paragraphs (f)(4)(i) through (f)(4)(viii). Stakeholders provided suggestions for reasons that a child's permanency plan may change which we incorporated into the response options below. We welcome comments on these reasons for a permanency plan change.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
This information is not currently collected and reported in AFCARS; therefore we currently do not have a way of identifying children who are
In paragraphs (f)(8) through (f)(11), we propose for the first time to require the title IV–E agency to collect and report in AFCARS information on visits between the child and the child's caseworker. We propose to require the title IV–E agency to collect and report the date, location and purpose of each visit by the caseworker and whether or not the caseworker visited the child alone during each visit, for each visit during each out-of-home care episode. Currently, States and Indian Tribes, Tribal organizations or consortia that operate title IV–B, subpart 1 programs are required under section 422(b)(17) of the Act to describe their standards for ensuring monthly caseworker visits with children in foster care. Section 422(b)(17) of the Act requires caseworker visits to occur monthly and the visits to be well-planned and focus on issues pertaining to case planning and service delivery. In addition, section 424(f) of the Act requires States to submit information on the number of visits made by caseworkers on a monthly basis to children in foster care and the number of the visits that occurred in the residence of the child. This information is reported in the APSR.
While States report information on caseworker visits, this information is not available in a quantitative database format nor do States report on the purpose or specific location of the visits. We believe that it is important to capture information on caseworker visits in a systematic way so that we may improve the quality of data analyses and we believe that AFCARS is an appropriate vehicle through which to collect this information. We propose to require the title IV–E agency to report the date and location of each visit, so that we will be able to measure with more accuracy whether the title IV–E agency is meeting the monthly caseworker visit requirement of sections 422(b)(17) and 424(f) of the Act (see paragraphs (f)(8) and (f)(9) respectively). We propose to require the title IV–E agency to report the purpose of each caseworker visit to distinguish true caseworker visits from other visits with the child. Further, we propose to require the title IV–E agency report separately whether the caseworker visited the child alone at any time during the visit as one avenue to assess the safety of the child (see paragraphs (f)(10) and (f)(11) respectively). We believe that collecting caseworker visit information in AFCARS will better inform the data that we could use in the CFSRs or other Federal monitoring efforts because we will be able to collect information at the case level, rather than in aggregate per the current CFSP/APSR reporting method. However, we believe that reporting caseworker visit information in AFCARS will be less of a burden on title IV–E agencies because many title IV–E agencies will be able to pull the information directly from their SACWIS or other information systems. Each data element is described below in paragraphs (f)(8) through (f)(11).
We propose that these response options be mutually exclusive. If the caseworker visits with the child are for more than one purpose, the title IV–E agency must indicate the primary purpose of the visit, as determined by the title IV–E agency. Title IV–E agencies are not required currently to report for the CFSP/APSR on the purpose of the visits or the activities that are carried out during the visits. We propose to require the title IV–E agency to report in paragraph (f)(10) the primary purpose of the visit between the caseworker and the child to measure whether the visits are focused on issues pertinent to case planning and service delivery, per section 422(b)(17) of the Act.
Section 475(5)(H) of the Act requires that the transition plan be personalized at the direction of the child and be developed during the 90-day period prior to the date on which the child attains age 18, or if applicable, during the 90-day period before the later age for a child in extended foster care elected by the title IV–E agency per section 475(8)(B) of the Act. We propose that the title IV–E agency indicate in paragraphs (f)(12)(i) through (f)(12)(vi) whether each option of “Housing,” “Health insurance,” “Health care treatment decisions,” “Education,” “Mentoring and continuing support” and “Work force support and employment services” is included in the child's transition plan, as required in section 475(5)(H) of the Act. We propose this data element so that we can discern the planning that takes place for older children who are in foster care and the impact transition planning has on a child's stay in foster care. We welcome comments on this proposal.
In paragraph (g), we propose to require the title IV–E agency to report information that describes when and why a child exits the out-of-home care reporting population. The title IV–E agency is currently required to report the child's most recent date of discharge and discharge reason in the existing AFCARS (see Appendix A to part 1355, section II, X). We retain the current AFCARS requirements, with some modifications. First, we propose to modify the language from the existing AFCARS regulation to refer to the child's “exit” from out-of-home care, instead of referring to the child's “discharge.” We believe that “exit” is a more accurate description when referring to a child's out-of-home care episode and understand that this term is consistent with current practice in the field. We used the term “exit” in the 2008 NPRM and 2010 FR Notice and did not receive comments on this. Second, as in the 2008 NPRM, we propose to require the title IV–E agency to report longitudinal information for all of the data elements in paragraph (g). Our current proposal in paragraph (g) is similar to our proposal in the 2008 NPRM; however, we made some modifications based on comments to the 2008 NPRM and 2010 FR Notice. We explain the changes in greater detail below.
This proposal differs from the existing AFCARS regulation in which we require that the title IV–E agency report only the child's most recent “date of discharge from foster care” (see Appendix A to part 1355, section II, X.A). We are continuing our 2008 NPRM proposal to require that the title IV–E agency collect and report each of the child's exit dates, if the child has multiple out-of-home care episodes.
An important aspect of our proposal that is different from existing AFCARS regulations and 2008 NPRM is the point at which we consider the child to have exited the out-of-home care reporting population. Existing AFCARS regulation and policy guidance is that if there is no specified period of time related to how long the child can remain home under the agency's responsibility for placement and care, then the agency reports the child as discharged if the length of stay is six months. In the 2008 NPRM, we proposed that an exit occurs when the title IV–E agency's placement and care responsibility for the child ends, the title IV–E agency has returned the child home, or the child reaches the age of majority and is not receiving title IV–E foster care maintenance payments. Commenters to the 2008 NPRM believed that the child should not exit the out-of-home care reporting population while the title IV–E agency has placement and care responsibility of the child. We were convinced by the overwhelming comments to simplify the definition of exit. We also explained in section 1355.41(a) that we are not continuing our proposal from the 2008 NPRM to report instances where the child is placed at home while still under the title IV–E agency's placement and care responsibility as an exit because commenters to the 2008 NPRM were overwhelmingly opposed to this proposal.
The existing AFCARS requirement is that the transaction date must be no later than 60 days after the child's exit (see Appendix A to part 1355, section II, X.A). In the 2008 NPRM, we proposed that the transaction date must be within 15 days of the child's exit. As we stated in the 2008 NPRM, we have found that data is higher in quality and accuracy when the transaction date is close in time to the date that it describes. Commenters to the 2008 NPRM expressed the same concerns with the
We propose that the title IV–E agency indicate the exit reason of “reunify with parent(s) or legal guardian(s)” if the child was returned to his or her parent(s) or legal guardian(s) and the title IV–E agency's placement and care responsibility ends. This includes reunifying with a parent(s) or legal guardian(s) even if the child was not removed from that parent(s) or legal guardian(s). The existing AFCARS requirement defines this exit reason differently to include when the child was returned to the child's parent or principal caretaker's home (see Appendix A to part 1355, section II, X.B). We propose to revise the reunification exit reason to remove the term caretaker, as we believe it is too vague.
We propose that the title IV–E agency indicate “live with other relatives” if the child exited out-of-home care to live permanently with a relative, related by a biological, legal or marital connection, other than the child's parent(s) or legal guardian(s) and the title IV–E agency's placement and care responsibility ends. Our proposal is unchanged from the 2008 NPRM and is a slight modification of the current AFCARS exit reason. The current AFCARS exit reason of “living with other relatives” refers only to relatives other than the one from whose home the child was removed (see Appendix A to part 1355, section II, X.B). We are modifying this exit reason to remove the instruction from the existing AFCARS definition that such relatives are “other than the ones from whom the child was removed” because it is not necessary with the changes made to the exit reason “reunify with parent(s) or legal guardian(s)” that now includes reunification with the parent(s) or legal guardian(s) from whom the child was not removed. We did not receive comments on this in response to the 2008 NPRM.
We propose that the title IV–E agency indicate “adoption” if the child was legally adopted. Our proposal is unchanged from the existing AFCARS response option and the 2008 NPRM. We did not receive comments on this in response to the 2008 NPRM.
We propose that the title IV–E agency indicate “emancipation” if the child exits out-of-home care due to age. Our proposal differs from the existing AFCARS response option and the 2008 NPRM where this exit reason captures when a child leaves the title IV–E agency's placement and care responsibility because the child ages out of foster care, gets married or is confined to jail or prison (see Appendix A to part 1355, section II, X.B). Commenters in response to the 2008 NPRM suggested that we should define the exit reason “emancipation” to refer to a child reaching the “age of majority” only. We agree and have created a new response option of “other” to include children who exit out-of-home care for reasons not described in previous response options, including exit due to marriage, or confinement to jail or prison.
We propose that the title IV–E agency indicate “guardianship” if the child exited out-of-home care when a relative or other unrelated individual obtained legal guardianship of the child. This does not include instances where the child is returned to the legal guardian(s) from whom the child was removed because that exit reason would be “reunify with parent(s) or legal guardian(s).” Our proposal is similar to the existing AFCARS exit reason but differs from the 2008 NPRM. In the existing AFCARS, the guardianship exit reason is when permanent custody of the child was awarded to an individual (see Appendix A to part 1355, section II, X.B). In the 2008 NPRM, we proposed separate exit reasons of relative and non-relative legal guardianship. Commenters to the 2008 NPRM requested that we combine the “relative guardianship” and “non-relative guardianship” response options because they stated that it would be burdensome to reprogram the title IV–E agency's information system to make this distinction and did not see the value of making such a distinction in AFCARS. We understand the concerns and we are now proposing one exit reason to include both relative and non-relative legal guardianships.
We propose that the title IV–E agency indicate “runaway or whereabouts unknown” if the child ran away or the child's whereabouts are unknown at the time that the title IV–E agency's placement and care responsibility of the child ends. This exit reason in the existing AFCARS and the 2008 NPRM focus on the child running away as the reason for the child's exit (see Appendix A to part 1355, section II, X.B). Commenters to the 2008 NPRM suggested adding an exit reason of “other” in place of the proposed response option of “runaway.” We considered the comment, but concluded that having a response option of “other” would not yield better information for our analyses. We instead propose that the title IV–E agency select the exit reason “runaway or whereabouts unknown” when the child ran away or the child's whereabouts are unknown and the title IV–E agency's placement and care responsibility ends. Including children whose whereabouts are unknown in this exit reason is necessary since the title IV–E agency must report in AFCARS information on children who are in their placement and care responsibility, even if the child's whereabouts are unknown.
We propose that the title IV–E agency indicate “death of child” if the child died while in out-of-home care. Our proposal is unchanged from the existing AFCARS requirement and the 2008 NPRM. We did not receive comments on this exit reason.
We propose that the title IV–E agency indicate “transfer to another agency” if the exit reason was because placement and care responsibility of the child was transferred to another agency, either within or outside of the reporting State or Tribal service area, and the title IV–E agency's placement and care responsibility of the child ends. This does not include public agencies, Indian Tribes, Tribal organizations or consortia that have an agreement with a title IV–E agency under section 472(a)(2)(B) of the Act. Title IV–E agencies are to report this exit reason when the title IV–E agency transfers its placement and care responsibility to an agency outside of the title IV–E agency. These transfers often are made to a juvenile justice or disability agency, if these agencies are external to the title IV–E agency.
We propose that the title IV–E agency indicate “other” if the child exited due to a reason not described in the above response options, such as marriage or confinement to jail or prison. This is a new proposal and is not required in the existing AFCARS regulation. We welcome comments on this proposal.
We propose that the title IV–E agency indicate “State title IV–E agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to a State title IV–E agency. This is a new proposed response option that was not proposed in the 2008 NPRM. We propose it now to clearly know when a child is transferred to a State title IV–E agency, as opposed to a different State agency.
We propose that the title IV–E agency indicate “Tribal title IV–E agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to a Tribal title IV–E agency. This is a new proposed response option that was not proposed in the 2008 NPRM. We propose it now to clearly know when a child is transferred to a Tribal title IV–E agency and to distinguish between transferring placement and care responsibility for the child to a Tribal title IV–E agency or an Indian Tribe, Tribal agency, Tribal organization or consortium that is not operating a title IV–E program directly per section 479B of the Act.
We propose that the title IV–E agency indicate “Indian Tribe or Tribal agency (non-IV–E)” if the reporting title IV–E agency transferred placement and care responsibility of the child to an Indian Tribe, Tribal agency, Tribal organization or consortium that is not operating a title IV–E program directly, per section 479B of the Act. We proposed this response option in the 2008 NPRM; however, we modified the title of the response option from “Tribe or Tribal agency” to “Indian Tribe or Tribal agency” and clarified the definition to distinguish between transferring placement and care responsibility for the child to a Tribal title IV–E agency or an Indian Tribe, Tribal agency, Tribal organization or consortium that is not operating a title IV–E program directly, per section 479B of the Act.
We propose that the title IV–E agency indicate “juvenile justice agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to a juvenile justice agency. We proposed this response option in the 2008 NPRM and we did not make changes from the 2008 NPRM proposal.
We propose that the title IV–E agency indicate “mental health agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to a mental health agency. We proposed this response option in the 2008 NPRM and we did not make changes from the 2008 NPRM proposal.
We propose that the title IV–E agency indicate “other public agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to another public agency other than a State or Tribal title IV–E agency, juvenile justice or mental health agency. We proposed a similar response option in the 2008 NPRM that was titled “other State agency.” We modified the title and definition from the 2008 NPRM proposal to provide a comprehensive list of agencies to which the reporting title IV–E agency may transfer placement and care responsibility for the child.
We propose that the title IV–E agency indicate “private agency” if the reporting title IV–E agency transferred placement and care responsibility of the child to a private agency. We proposed this response option in the 2008 NPRM and we did not make changes from the 2008 NPRM proposal.
Finally, we would like to note that we are not continuing to propose the data elements “death due to child abuse/neglect in care” and “circumstances at exit from out-of-home care” that were proposed in the 2008 NPRM. Several commenters to the 2008 NPRM expressed that the previously proposed data element “death due to child abuse/neglect in care” was redundant with the information collected in NCANDS and that collecting this information in AFCARS could lead to misinformation and under or over-reporting of deaths of children in care due to abuse or neglect. Commenters to the 2008 NPRM also pointed out that a final decision regarding a child's fatality could take extensive time to resolve which could cause issues for timely data submissions. Additionally, commenters to the 2008 NPRM were overwhelmingly opposed to our proposal to collect information on child and family circumstances at any point in time other than at removal, consistent with the comments made regarding paragraph (f) of this section. Commenters in response to the 2008 NPRM expressed strong opposition to reporting child and family circumstances at exit citing worker burden to enter the data and questioned the value of collecting such information after the time of removal. Commenters to the 2008 NPRM also felt that the proposed list of circumstances would not capture the progress that is made in a case and would not properly illustrate the issues surrounding a family. Thus, based on the comments in response to the 2008 NPRM, we decided not to propose these data elements.
In paragraph (h), we propose that the title IV–E agency collect and report information on the child's exit from out-of-home care to a finalized adoption or legal guardianship. This information must be reported if the title IV–E agency reported the child's exit reason in paragraph (g)(3) as “adoption” or “guardianship.” Otherwise the title IV–E agency must leave the data elements described in paragraph (h) of this section blank.
We propose to require the title IV–E agency to collect and report data elements in paragraph (h) of this section which are similar to those currently collected in the AFCARS adoption data file, and proposed in the 2008 NPRM. Title IV–E agencies are required to collect and report demographic characteristics of children in foster care and adopted children and their biological and adoptive or foster parents (section 479(c)(3)(A) of the Act). We proposed in the 2008 NPRM to collect information on finalized adoptions and adoptive parents in the out-of-home care data file, instead of in a separate adoption data file as is the structure of the current AFCARS. We continue our proposal from the 2008 NPRM to collect information on finalized adoptions and adoptive parents in the out-of-home care data file and we are modifying it to require the title IV–E agency to collect and report information in paragraph (h) on legal guardianships and legal guardians. Section 473(d) of the Act authorizes a title IV–E guardianship assistance program that provides Federal assistance and subsidies to eligible children who exit foster care to a relative legal guardianship. Title IV–E agencies report in the existing AFCARS whether children discharge from foster care to guardianship, but no other information is reported on the legal guardians. ACF is very interested in collecting data in AFCARS on legal guardianships so that we may analyze the use of legal guardianship as a permanency option for children in foster care. We also received many supportive comments in response to the 2010 FR Notice to collecting the same information for children in legal guardianships and adoptions stating that collecting more information on guardianships would provide an important look at the children who exit out-of-home care to legal guardianship.
Our proposed response options are similar to those in the existing AFCARS regulation (see Appendix B to part 1355, section II, VI.A) and the 2008 NPRM. We modified our proposal to include collecting the marital status of the child's legal guardian(s) and clarified the directions in this data element in response to commenters to the 2008 NPRM who requested direction on how to indicate instances where one individual of a married or unmarried couple adopts or obtains legal guardianship of a child.
In the existing AFCARS, the types of relationships between the child and his or her adoptive parent(s) are limited to stepparent, other relative of child by birth or marriage, foster parent and non-relative (see Appendix B to part 1355, section II, VI.D). In the 2008 NPRM, we proposed an expanded list of relationships almost identical to the relationships proposed now, in order to further examine the extent to which relatives are being utilized as resources, but we did not include kin relationships as a response option. We received many supportive comments in response to the 2008 NPRM on the proposed expanded list; however, we also received comments for this data element and throughout the 2008 NPRM requesting the inclusion of kin relationships into the data elements. Based on the comments to the 2008 NPRM, we propose to include kin relationships in this data element, consistent with the addition of kin throughout our current proposal. We also modified the proposed response options to require the title IV–E agency to report the relationship between the child and his or her legal guardian(s). No other modifications were made to paragraph (h)(2) beyond the modifications already explained.
The title IV–E agency is required to report in the existing AFCARS only the year of birth for the adoptive parent(s)
The racial categories are consistent with the OMB standards for collecting information on race. Commenters to the 2008 NPRM suggested changes for the racial categories; however, we do not propose any changes here. The response options proposed in paragraphs (h)(4)(i) through (h)(4)(vii) and (h)(7)(i) through (h)(7)(vii) are the same as those in the existing AFCARS regulations (see Appendix B to part 1355, section II, VI.C), the 2008 NPRM, and other sections of this proposed rule where demographic information on race is collected; however, we modified our proposal from the 2008 NPRM to include collecting information on the legal guardian's race, consistent with our proposed changes throughout paragraph (h).
Consistent with the existing AFCARS requirement and the 2008 NPRM, the title IV–E agency must allow the adoptive parent or legal guardian to determine his or her own race. If the adoptive parent, legal guardian or other member of the couple does not know his or her race, the title IV–E agency must indicate that this information is not known (see paragraphs (h)(4)(vi) and (h)(7)(vi)). It is acceptable for the adoptive parent, legal guardian or other member of the couple to identify with more than one race, but not know one of those races. In such cases, the title IV–E agency must indicate the racial classifications that apply and also indicate that one of the races is not known (see paragraphs (h)(4)(vi) and (h)(7)(vi)). If the adoptive parent, legal guardian or other member of the couple declines to identify his or her race, the title IV–E agency must indicate that this information was declined (see paragraphs (h)(4)(vii) and (h)(7)(vii)).
Similar to the data elements on race in paragraphs (h)(4) and (h)(7), the definitions in paragraph (h)(5) and (h)(8) are also consistent with the OMB race and ethnicity standards, as described in section 1355.43(b) of this proposed rule. Consistent with the existing AFCARS requirement and the 2008 NPRM, the title IV–E agency must allow the adoptive parent, legal guardian or other member of the couple to determine his or her own ethnicity. If the adoptive parent, legal guardian or other member of the couple does not know his or her ethnicity, the title IV–E agency must indicate the response option “unknown.” If the adoptive parent, legal guardian or other member of the couple refuses to identify his or her ethnicity, the title IV–E agency must indicate that the information was declined.
Our proposal is the same as the existing AFCARS requirement (see Appendix B to part 1355, section II, VI.C), the 2008 NPRM and other sections of this proposed rule where demographic information on ethnicity is collected. We did not receive comments from the 2008 NPRM on this data element; however, we propose to require that the title IV–E agency collect this information for the child's legal guardian(s), consistent with our proposed changes throughout paragraph (h).
In the existing AFCARS, the title IV–E agency is required to report the location of the agency or individual that had custody or responsibility of the child at the time of initiation of adoption proceedings from a list of three options: Within State; another State; or another country (see Appendix B to section II, VII.A). We proposed in the 2008 NPRM to change the name of the data element and the response options to: Interstate adoption; intercountry adoption; or intrastate adoption. We did not receive comments from the 2008 NPRM on this data element; however, we propose modifications to the 2008 NPRM proposal to collect information on inter/intrajurisdictional legal guardianships, consistent with other proposed changes to collect information on legal guardianships throughout paragraph (h). We also modified the definitions of the response options from
Title IV–E agencies are not required to report location information on an interjurisdictional or intercountry adoption or guardianship in the existing AFCARS. In the 2008 NPRM, we proposed requiring for the first time that the title IV–E agency report the location of the child's adoption using the State's numeric two-digit FIPS code. Commenters to the 2008 NPRM expressed concern with keeping up with ever-changing FIPS codes. We are modifying our 2008 NPRM proposal to remove FIPS codes, which are no longer being maintained and updated, and do not account for the breadth of jurisdictions that could be captured in this element, as they do not include non-Federal Tribes or other countries. Instead, we propose to require that the title IV–E agency indicate the jurisdiction's or country's name for identification purposes which we believe will address commenter concerns. ACF will work with title IV–E agencies to develop valid response options for this element. We also believe that the information reported in this data element, in combination with the information reported in paragraph (h)(9), will provide information on the extent to which title IV–E agencies are maximizing all potential adoptive and guardianship resources for waiting children and will assist ACF in responding to questions and concerns regarding interjurisdictional and intercountry placement issues.
In the existing AFCARS, the title IV–E agency is required to report in the adoption data file the agency or individual that placed the child for adoption from a list of response options public or private agency, Tribal agency, independent person or birth parent (see Appendix B to part 1355, section II, VII.B). In the 2008 NPRM, we proposed to require the title IV–E agency to indicate the adoption placing agency from the response options “State agency,” “private agency under a contract/agreement” or “Tribal agency with agreement.” We did not receive comments to the 2008 NPRM on this data element; however, we propose modifications to the response options, explained in detail below. A general modification we propose is for title IV–E agencies to report the agency that placed the child for guardianship. This modification is consistent with modifications made throughout paragraph (h) to collect information on legal guardianships. We proposed in the 2008 NPRM to only collect this information for adoptions.
We propose to modify the response option “State agency” that was proposed in the 2008 NPRM to “title IV–E agency” because this language is inclusive of State and Tribal title IV–E agencies.
We propose to modify the definition of the response option “private agency under agreement” as proposed in the 2008 NPRM to remove the language specifying that the reporting State had placement and care responsibility for the child. This language is unnecessary because this data element is now in the out-of-home care data file.
We propose to modify the response option “Tribal agency with agreement” that was proposed in the 2008 NPRM to be “Indian Tribe under contract/agreement” to be inclusive of Indian Tribes, Tribal organizations or consortia that may have a contract or an agreement with the title IV–E agency. Additionally, we removed the language proposed in the 2008 NPRM specifying that the reporting State had placement and care responsibility of the child because this data element is now in the out-of-home care data file.
We propose to add section 1355.44 which provides all elements for the adoption and guardianship assistance data file. The proposal is for ACF to collect and report information commonly found in the title IV–E adoption or guardianship assistance agreement for the adoption and guardianship assistance reporting population as described in section 1355.41(b). In this data file, we propose to collect information on (1) the title IV–E agency submitting the adoption and guardianship assistance data file, (2) basic demographic information on each child, including the child's date of birth, gender, race and ethnicity and (3) information in the child's title IV–E adoption or guardianship agreement, including the date of finalization, and amount of subsidy and nonrecurring costs as well as living arrangement information. We propose this information to supplement data on adoption and legal guardianships collected in section 1355.43(h).
Currently, we collect information in the adoption data file on the reporting title IV–E agency, demographic information for adopted children in the data file's reporting population, information on the child's special needs status, birth parents, adoptive parents, placement information and whether the child receives State/Federal adoption support (see Appendix B to part 1355, Section I–VII). Currently we collect limited information on the population of children receiving adoption assistance and no information on children receiving title IV–E guardianship assistance in the adoption data file.
In the 2008 NPRM, we proposed to change the structure and content of the current AFCARS data files by no longer including an adoption file and requiring title IV–E agencies to report information on foster care adoptions and adoptive families in the out-of-home care data file only. We proposed that title IV–E agencies submit a new adoption and guardianship subsidy data file with information on children who were the subject of a State or Federal adoption assistance agreement (regardless of whether their adoption was final), additional information surrounding those adoption agreements and very limited information on children who were the subject of a subsidized guardianship agreement with the title IV–E agency.
The current proposal for the adoption and guardianship assistance data file contains similar data elements as the 2008 NPRM proposal, but differs in several significant ways. First, we propose to require a title IV–E agency to collect and report the same information on children under title IV–E guardianship assistance agreements as children under title IV–E adoption assistance agreements, per the revised adoption and guardianship assistance reporting population described in section 1355.41(b). Second, we propose that a title IV–E agency collect and report the same information in this data file for only those children in a finalized adoption or legal guardianship under a title IV–E assistance agreement. Although ACF no longer proposes to collect information on State-funded legal guardianships, this modification means that ACF will collect information on each child in a legal guardianship under a title IV–E relative legal guardianship assistance agreement in an increased number of data elements than we proposed in the 2008 NPRM. Finally, we propose for the first time to require a title IV–E agency to collect and report information on siblings who are living with the child in his or her adoptive or guardianship home.
We received many public comments in response to the proposal to restructure the collection of adoption information and the introduction of a separate subsidy data file in the 2008 NPRM and the 2010 FR Notice. Many commenters were pleased to see our proposal for the new adoption assistance and guardianship subsidy data file, and felt that collecting information for children in legal guardianships and adoptions would provide an important look at these children. Some commenters to the 2010 FR Notice expressed concerns, in general, about the necessity of collecting ongoing information for a child after his or her adoption or legal guardianship has been finalized and questioned how the expansion of data elements as proposed in the 2008 NPRM would help improve outcomes for children. ACF is required, per section 479(c)(3) of the Act, to capture information on adopted children, including demographics and information about the child's title IV–E adoption. While there is no statutory mandate to collect similar information for children who have achieved permanency through guardianship, we propose to collect the same information because we have the same need for the information for children supported by title IV–E funding, per section 473(d) of the Act.
In paragraph (a), we propose to collect general information that identifies the title IV–E agency submitting the adoption and guardianship assistance data file, the report date, and the child's record number.
The definition of this data element is the same as the one we proposed in the out-of-home care data file (see section 1355.43(a)(1)). We propose that the title IV–E agency report this information in the adoption and guardianship assistance data file as well as in the out-of-home care data file because the title IV–E agency will submit the two data files to us separately.
Our current proposal prohibits the use of sequential numbers for AFCARS, and also requires the title IV–E agency to use the same child record number as is used in the out-of-home care data file if the child was in the out-of-home care reporting population before entering the adoption and guardianship assistance reporting population.
Similar to the instructions for the record number data element in the out-of-home care data file, the title IV–E agency must apply and retain the same encryption routine or method for the person identification number across all report periods. The title IV–E agency's encryption methodology must meet any standards that ACF prescribes through technical bulletins or policy. Requiring the title IV–E agency to maintain unique, encrypted child record numbers for AFCARS data files will allow us to track the amount of title IV–E adoption and guardianship assistance changes over time, and will help predict future changes based upon the age distribution of the population. We propose for the title IV–E agency to retain the same child record numbers between AFCARS data files, when applicable, to allow ACF to collect more comprehensive information about the permanency of title IV–E adoption and legal guardianship placements in the title IV–E program, as well as conduct analysis regarding the extent to which sibling groups are placed together permanently.
In paragraph (b), we propose that the title IV–E agency collect and report demographic information on the child, including the child's date of birth, race and ethnicity.
We propose in paragraph (b)(1)(i), that the title IV–E agency report the child's date of birth in month, day and year format. This is basic demographic information which we are mandated to collect in section 479(c)(3)(A) of the Act for adoptions and is similar to the existing AFCARS requirement for the adoption data file, although we currently propose to collect this information for children in legal
The child's date of birth will assist us in conducting a variety of analyses including determining at what age children are being adopted or placed in legal guardianship under the title IV–E program. Since most children receive title IV–E adoption or guardianship assistance until the age of 18, or older for a title IV–E agency that chooses to extend assistance up to age 19, 20 or 21, knowing the child's date of birth will assist the title IV–E agency and the Federal government in conducting budget projections and program planning.
In paragraph (b)(1)(ii), we propose to require the title IV–E agency to report whether or not the child was born in the United States. If the child was born in the United States, indicate “yes.” If the child was born in a country other than the United States, indicate “no.” This is a newly proposed data element and will give us a national picture of how many foreign-born children are receiving title IV–E adoption or guardianship assistance. We specifically request comments from State and Tribal title IV–E agencies on this data element.
If the child's race is unknown, the title IV–E agency must so indicate, as required in paragraph (b)(2)(vi). It is acceptable for the child to be identified with more than one race, but for the child, parent(s) or legal guardian(s) to not know one of those races. In such cases, the title IV–E agency must indicate the racial classifications that apply and also indicate that a race is unknown. If the child is abandoned the title IV–E agency must indicate that the race cannot be determined in paragraph (b)(2)(vii). Finally, if the parent(s), legal guardian(s) or the child, if appropriate, declines to identify the child's race, the title IV–E agency must indicate that this information was declined as outlined in paragraph (b)(2)(viii).
In paragraph (c), we propose that the title IV–E agency collect and report ongoing information on title IV–E adoption and guardianship arrangements and agreements. This proposed section is different from existing AFCARS, which does not include a data file with ongoing information on subsidies. It only includes information in the adoption data file on a child's demographics, placement information and court information, as well as limited information on both the child's birth parent(s) and adoptive parent(s).
This new proposed section differs from both the existing AFCARS and the 2008 NPRM in that we propose to collect ongoing adoption and guardianship assistance agreement information for only those children with finalized title IV–E adoption and legal guardianship assistance agreements in effect during the report period. Throughout this proposed section, a title IV–E agency is no longer required to report information on children who are in adoptive placements but do not yet have finalized adoptions or those with State-funded adoption assistance agreements. We propose to collect information on title IV–E adoption and guardianship assistance agreements for children with finalized adoptions or legal guardianships regardless of whether the agreement is for an ongoing subsidy, nonrecurring costs or in the case of a title IV–E finalized adoption, a Medicaid-only subsidy.
In the 2008 NPRM, we proposed that the title IV–E agency collect information on a child's adoption and adoptive parents at the time of a child's exit to adoption in section 1355.43(h) of the out-of-home care data file and new information in the adoption assistance and guardianship subsidy data file. We received several public comments in response to this proposal in the 2008 NPRM indicating concern that this change would increase burden on caseworkers and require programming changes in the SACWIS systems of title IV–E agencies. There were also a number of commenters to the 2010 FR Notice concerned about the increased burden of collecting data on children in adoptions and legal guardianships, and several commenters suggested that the requirement to collect case-level data on children in adoptive and guardianship homes would be a significant barrier to obtaining information since children already would have achieved permanency. We contemplated these comments, but, per the new adoption and guardianship assistance reporting population described in section 1355.41(b), we now propose to collect information for only those children under title IV–E adoption and guardianship assistance agreements. Because the title IV–E agency still supports the children under these adoption and guardianship assistance agreements, we anticipate that most of the information would already be in the case files or included in other modules of the title IV–E agency's case
This data element differs from both the existing AFCARS requirements and the data element proposed in the 2008 NPRM, however we request the information for the same reasons. Existing AFCARS policy guidance requires a title IV–E agency to report the monthly subsidy amount one time—at the finalization of the adoption.
We proposed in the 2008 NPRM that a title IV–E agency report information in two separate data elements on the subsidy amount for the adoption and legal guardianship for each report period beginning when the assistance agreement becomes effective and continue reporting for the duration of the agreement. We received a public comment in response to the “adoption assistance subsidy amount” data element proposed in the 2008 NPRM that suggested that a title IV–E agency should not be required to collect data on adoption agreements more than once, as the information is relatively stable over time. We considered this comment, and while the amounts may not change much from month to month, we have seen reductions in title IV–E subsidy amounts in recent years. Therefore, we continue to propose to collect this information so we can discern changing circumstances and fluctuations in subsidy amounts in title IV–E adoption and guardianship assistance agreements for as long as the agreement is in effect. We believe that collecting information on title IV–E adoption and guardianship subsidy amounts will be useful for States, Indian Tribes and the Federal government for budgetary planning and projection purposes. Information on title IV–E guardianship is collected in the CB–496 form currently; however this information is aggregated and does not provide specific information on the amount of the title IV–E guardianship subsidy that each child receives. Collecting child-level data on the amount of title IV–E guardianship assistance received by each child would allow ACF to conduct more nuanced analysis to determine how many children there are in certain subsidy ranges and more accurately project budget and program costs.
Unlike title IV–E adoption and guardianship assistance payments which are ongoing and may fluctuate over time, reimbursements for nonrecurring costs are more likely to be made in a lump-sum or over a finite period of time. Although we propose to require title IV–E agencies to report the amount of the adoption or guardianship subsidy during the last month of each report period, we also propose to require the title IV–E agency to report the total amount of the non-recurring costs over the entire report period to capture the full amount of nonrecurring costs made on behalf of the adoptive parent(s) or legal guardian(s).
These data elements are not currently required in AFCARS and we first introduced them in the 2008 NPRM, but only for title IV–E adoption assistance agreements. The current proposal is a modification of the 2008 NPRM proposal to now include title IV–E legal guardianship agreements, per the revised adoption and guardianship assistance reporting population in section 1355.41(b). There were no substantive comments in response to the 2008 NPRM proposal to collect non-recurring costs of adoption. We seek information on nonrecurring cost reimbursements for adoption consistent with the requirement in section 479(c)(3)(D) of the Act to collect information on the extent of adoption assistance. There is no statutory mandate to collect this information for the IV–E guardianship program, however, since title IV–E funds are reimbursed for these costs, this information is essential for conducting budget projections and program planning for both title IV–E adoption assistance and guardianship assistance programs.
An additional data element, “final adoption”, was proposed in the 2008 NPRM that required a title IV–E agency to collect information on whether the child who is the subject of an adoption assistance agreement had his or her adoption finalized. We eliminated this data element to maintain consistency with our proposal to limit the adoption and guardianship assistance reporting population to children with a finalized adoption or legal guardianship and a title IV–E assistance agreement. If the proposed changes to this reporting population are applied, the “final adoption” data element is unnecessary.
This information is similar to what is proposed for section 1355.43(h)(11) but must be included in the adoption and guardianship assistance data file because this data file includes private agency adoptions for children who were not in foster care. The existing AFCARS includes this information in the adoption data file and requires the title IV–E agency to indicate the placing agency or individual from a limited number of response options that are public agency; private agency; Tribal agency; independent person and birth parent. We proposed in the 2008 NPRM to expand the response options for this proposal in order to collect more specific information about when the title IV–E agency was the placing agency, and as a result, several response options were newly proposed (State agency, private agency under contract/agreement, and Tribal agency with agreement), along with the retained options of “Tribal agency,” “private agency,” “birth parent,” and “independent person”.
We did not receive comments on this data element in the 2008 NPRM, but several comments in the 2010 FR Notice were supportive of tracking adoptions through private agencies and Indian Tribes. Therefore, we revised the 2008 NPRM proposal to remove the response option of “State agency” and “Tribal agency” and replace them with the response option “title IV–E agency” in order to conform to the changes in Public Law 110–351 that allow for an Indian Tribe to operate a title IV–E program directly (section 479B of the Act).
We do not propose to include the separate response option of “Tribal agency with agreement” that was proposed in the 2008 NPRM. Instead, Indian Tribes with title IV–E agreements are included in the response option of “Indian Tribe” because the Indian Tribe has an arrangement with the reporting IV–E agency for a title IV–E adoption or guardianship assistance agreement. If the title IV–E agency provides a response to paragraph (c)(6) of “Indian Tribe” or “private agency,” the agency must complete paragraph (c)(7).
We propose to modify the 2008 NPRM proposal to limit our data collection in this data element to those children under title IV–E adoption and guardianship assistance agreements who were placed by an Indian Tribe or private agency through an arrangement with the title IV–E agency. We are making this modification per the revised adoption and guardianship assistance reporting population described in section 1355.41(b) and to avoid duplication in data collection with the information collected in section 1355.43(h)(9) on children under the placement and care responsibility of the title IV–E agency placed for adoption or legal guardianship. We also propose to delete the responses option “intercountry adoption—incoming” and “intercountry adoption—outgoing.”
The current AFCARS requirement is for the title IV–E agency to indicate, in the adoption data file, the location of the individual or agency that had custody or responsibility for the child at the time the adoption proceedings were initiated. The 2008 NPRM proposed an expansion of this data element to require a title IV–E agency to indicate whether a child was placed across State or Tribal service area lines for the purposes of adoption or legal guardianship or was the subject of an incoming or outgoing intercountry adoption.
We received several public comments in response to the 2008 NPRM proposal indicating concern regarding the ability of the title IV–E agency to access information relating to international
This data element is not included in the current AFCARS adoption file. In the 2008 NPRM, we proposed for the first time that the title IV–E agency indicate the FIPS code of the State or country in which the child was placed into or placed from. We received several comments in response to the 2008 NPRM for this data element that raised concerns about the stability of country codes from FIPS, and indicated that a title IV–E agency would have to significantly modify its system in order to capture FIPS code information for international adoption. We agreed with these comments because FIPS codes are no longer being maintained and updated, and they also do not account for the breadth of jurisdictions that could be captured in this element, as they do not include non-Federal Tribes or other countries. Instead, we propose to require that the title IV–E agency report the jurisdiction or country name for those children placed by an Indian Tribe under a contract or agreement with the reporting title IV–E agency, or a private agency under an arrangement with the reporting title IV–E agency. We believe this modification will address commenter concerns. In addition, ACF will work with title IV–E agencies to develop valid response options for this element.
We are interested in proposing that the title IV–E agency report on a child's siblings in paragraphs (c)(9) through (c)(11) of this section in order to learn more about sibling group placement in adoption and guardianship homes, and to comply with the mandate in section 471(a)(31)(A) of the Act. Under this statutory provision, the title IV–E agency must make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive placement, unless such a placement is contrary to the safety or well-being of any of the siblings. We propose paragraph (c)(9) specifically to determine the total number of siblings which ACF will use to ensure correct data entry in paragraphs (c)(10) and (c)(11). This proposal complements our proposal pertaining to collection of information on sibling groups in the out-of-home care data file.
Typically, title IV–E adoption or guardianship assistance agreements continue until the child is age 18, or age 21 if the adopted child has a mental or physical handicap which warrants the continuation of assistance. However, Public Law 110–351 amended sections 475(8)(B)(i)(II) and (III) of the Act to allow title IV–E agencies the option to select an age up to age 21 for extended eligibility for all title IV–E programs, including adoption and guardianship assistance.
The only difference between the 2008 NPRM proposal and our current proposal is that we now include the end dates for title IV–E guardianship assistance agreements, per the revised adoption and guardianship assistance reporting population described in section 1355.41. We received one public
Following the direction of the 2008 NPRM, we are not proposing to require a title IV–E agency to report the adopted child's special needs status separately as required in current AFCARS. In the current AFCARS we require a title IV–E agency to report whether it has determined that the child has special needs, and the primary factor (the child's race, age, membership in a sibling group or medical condition or disability) in this determination. We do not wish to retain this data element, for the reasons described in the 2008 NPRM.
In section 1355.45, we propose the types of assessments we will conduct to determine the accuracy of a title IV–E agency's data, the data files which will be subject to these assessments, the compliance standards and the manner in which the title IV–E agency initially determined to be out of compliance can correct its data. This section also specifies how we propose to implement the statutory mandates of Public Law 108–145.
Public Law 108–145 added section 474(f) to the Act, which requires that ACF withhold certain funds from a title IV–E agency that “failed to submit to the Secretary data, as required by regulation, for the data collection system implemented under section 479.” Although we recognize that the provisions related to AFCARS in section 479 of the Act were designed to bolster our authority to take financial penalties for noncompliance with AFCARS requirements, we did not believe that the statute on its face was clear enough to implement penalties immediately after its enactment. In ACYF–CB–IM–04–04, issued February 17, 2004, we notified title IV–E agencies that we would not implement the penalty structure in the statute until we published final regulations. Further, because we were in the midst of developing proposed rules that would change significantly the information that title IV–E agencies submit to AFCARS, we did not believe it prudent to implement a new penalty structure for the existing requirements in regulation.
This proposal is different from the current AFCARS regulations (section 1355.40(e) and Appendix E to part 1355) in that it applies the same compliance standards to both data files, expands the number of error types to include invalid data, cross-file errors and tardy transactions and creates a separate section to define the data file standards associated with timely submission and each error type defined in section 1355.45(b). This proposal is identical to that proposed in the 2008 NPRM with two revisions in section 1355.45(a). First, we propose to apply compliance standards to both the out-of-home care and adoption and guardianship assistance data files, whereas the 2008 NPRM subjected only the out-of-home care data file to compliance standards. Second, we propose to exempt certain populations in each data file from compliance determination, namely, for both data files, the population of children over age 18 and children in a legal guardianship under a title IV–E guardianship assistance agreement in the adoption and guardianship assistance data file.
In paragraph (a), we propose that ACF determine whether a title IV–E agency's out-of-home care and adoption and guardianship assistance data files are in compliance with the requirements of section 1355.42 of this part and certain data file and data quality standards (described further below in paragraphs (c) and (d)). This proposal is similar to the current AFCARS requirements in that the proposed out-of-home care and adoption and guardianship assistance data files are subject to a compliance determination separately. In the 2008 NPRM we proposed that only the out-of-home care data file be subject to a compliance determination, primarily because there was no statutory mandate to request information on guardianship agreements. We propose to now include the adoption and guardianship assistance data file in the compliance determination, but propose several exemptions for children included in this data file, as described below. The law requires us to assure that the data submitted to us is reliable and consistent and authorizes us to utilize appropriate requirements and incentives to ensure that the system functions reliably (sections 479(c)(2) and (4) of the Act, respectively). We chose to fulfill these requirements by establishing specific standards for compliance, consistent with our current requirements (see Appendix E to part 1355) and those proposed in the 2008 NPRM. Although we received several comments to the 2008 NPRM in support of our proposal to exclude the adoption and guardianship data file from a compliance determination, we believe that since we are required by section 479(c)(3) of the Act to collect information on children in adoptions supported by title IV–E, it is appropriate to include this data file in our compliance determination process. We include exceptions, as described below, to exclude most of the children in optional title IV–E programs from compliance determination. We did not receive other comments on this approach in response to the 2008 NPRM or 2010 FR Notice, and therefore, do not believe there is a need to change this general approach.
We propose to exempt, in general, records related to a child in either data file whose 18th birthday occurred in a prior report period from a compliance determination as described in paragraph (e) of this section. However, in order to report full information for children on who we are statutorily required to collect information, the report period in which the child turns 18 will be subject to a compliance determination. Under this proposal, a child is exempted from a compliance determination because of age in each report period following that in which they turn 18 years of age, regardless of whether the title IV–E agency opts to adopt a revised definition of child per section 475(8)(B) of the Act. The primary reason that we are not subjecting records of these children to compliance determinations is because extended assistance is an option available under either the title IV–E plan (per section 475(8)(B) of the Act), or per the State's former AFDC plan.
We also propose to exempt from a compliance determination, described in paragraph (e) of this section, a child of any age in the adoption and guardianship assistance data file who is in a legal guardianship under a title IV–E guardianship assistance program agreement per section 473(d) of the Act. We are not subjecting records of these children to compliance determinations primarily because electing to implement a title IV–E guardianship assistance
Although we do not propose compliance standards and penalties for submitting data on children in the adoption and guardianship assistance data file who are in a legal guardianship under a IV–E guardianship assistance agreement and/or children in either data file whose 18th birthday occurred in a previous report period, this information is still important to ACF and title IV–E agencies and we will take other steps to ensure that title IV–E agencies submit quality data. In particular, we may require the title IV–E agency to create and meet the goals of an AFCARS program improvement plan, target technical assistance efforts to collecting and reporting this information and/or develop data quality utilities for these records that will allow a title IV–E agency to evaluate the quality of the data files before submitting to ACF. We welcome comments on this proposal.
In paragraph (b), we outline the definitions of errors in paragraphs (b)(1) through (b)(5) of this section and propose how we will identify those errors when we assess information collected in a title IV–E agency's out-of-home care data file (per section 1355.43) and adoption and guardianship assistance data file (per section 1355.44). This section is similar in approach to the 2008 NPRM proposal, however, we modified this proposal to apply the compliance standards to both the out-of-home care data file and adoption and guardianship assistance data file and to except certain optional populations from compliance determination, as described in paragraph (a). We did not receive any substantive comments to this proposed approach in the 2008 NPRM. Specific comments on error types are included in each paragraph below.
This proposal is identical to that in the 2008 NPRM; yet, the definition of the term “missing data” we propose is more specific than is used in the existing AFCARS. AFCARS regulations currently define the term “missing data” to refer to both blank responses and invalid responses (discussed below). In the 2008 NPRM, we chose not to propose the existing definition in AFCARS to avoid the common confusion that only blank data is problematic, and we did not change the proposed definition here.
Finally, as described in the 2008 NPRM, we want to underscore that title IV–E agencies are not permitted to mask the fact that they have not obtained information by mapping it to a valid, but untrue, response option. This practice is not permitted as specified in the proposed section 1355.42(d), as it provides a misleading and inaccurate account of the characteristics and experiences of the reporting population. We did not receive comments on this proposal in response to the 2008 NPRM.
As described in the 2008 NPRM, these types of errors are not new and there are currently internal consistency validations outlined in the existing AFCARS. However, we have found that the existing internal consistency checks, while providing an important first step to quality data, are not extensive enough. Unfortunately, there are a number of occasions where a title IV–E agency's data pass all the existing internal consistency checks, but upon further analysis, ACF and the title IV–E agency discover that the data provides an inaccurate and unreliable picture of children in foster care in the title IV–E agency's placement and care responsibility. Based on our experience in AFCARS reviews and technical assistance, we believe that more internal consistency checks, along with other assessments to uncover errors, will provide us with more reliable and consistent data that we can publicize and use for our program activities with a higher degree of confidence.
Cross-file checks are not a part of the existing AFCARS compliance assessments, but are a part of the Data Quality Utility. We propose to evaluate a title IV–E agency's data files for cross-file errors to address some common problems identified in AFCARS assessment reviews. Often these problems are a result of underlying issues in the programming of the title IV–E agency's information system as opposed to data entry errors.
In paragraph (c), we propose a set of file submission standards for ACF to determine that the title IV–E agency's AFCARS is in compliance. These are minimal standards for timeliness, formatting and quality information that the title IV–E agency must achieve in order for us to process the title IV–E agency's data appropriately. This proposal is similar to the 2008 NPRM proposal, but is modified to apply data file standards to both the out-of-home care data file as well as the adoption records in the adoption and guardianship assistance data file. Several additional changes are incorporated into this proposal that were not included in the 2008 NPRM, which will be addressed in each of the paragraphs below.
In addition, we propose that the title IV–E agency submit 100 percent error-free data for eleven basic demographic data elements described in sections 1355.43(a)(1) through (a)(4), 1355.43(b)(1)(i) and (b)(2), 1355.44(a)(1) through (a)(3) and 1355.44(b)(1)(i) and (b)(2). These data elements describe the “title IV–E agency name,” “report date,” “local agency,” “child record number,” “child's date of birth” and “child's gender” in both the out-of-home care data file and adoption records in the adoption and guardianship assistance data file. The errors that may be applicable to these data elements are missing data, invalid data, cross-file errors and internally inconsistent data, as defined in sections 1355.45(b)(1) through (b)(4). This proposal is revised slightly from its description in the 2008 NPRM to include child demographic information for the adoption records contained in the adoption and guardianship assistance data file.
As we proposed in the 2008 NPRM, we propose to require that title IV–E agencies have no errors at all for these basic demographic data elements because they contain information that is readily available to the title IV–E agency and is essential to our ability to analyze the data and determine whether the title IV–E agency is in compliance with the remaining data standards. For example, the child's date of birth is information that all title IV–E agencies collect on children in foster care and would typically have in their information system. Without the child's date of birth, we cannot run some other internal consistency or cross-file checks. Moreover, we cannot, for example, look at the age stratification of children in out-of-home care or determine the mean age of children adopted from foster care. There were a number of commenters that opposed the 100 percent reporting requirement for basic demographic data elements outlined in the 2008 NPRM, citing concerns over cost, burden and value of information. We considered these comments, however, based on our experience with the existing AFCARS and with NYTD, we have found that problems in these data elements are often the result of minor errors that can be rectified easily. We therefore believe that a 100 percent compliance standard for these basic and critical data elements is appropriate.
In paragraph (d), we propose a set of data quality standards for the title IV–E agency to be in compliance with AFCARS. These standards are in addition to the formatting standards described in paragraph (c)(2) of this section, and focus on the quality of the data that a title IV–E agency provides. The data quality standards relate to missing data, invalid data and internally inconsistent data, as defined in error specifications per section 1355.45(b) and tardy transactions, as defined in paragraph (b)(5) of this section. No more than 10 percent total of the data for each data element in each of the title IV–E agency's out-of-home care or adoption and guardianship assistance data files may have these data errors to remain in compliance with the AFCARS standards. The numerical standard of 10 percent is consistent with the existing AFCARS standards, and also is similar to the 2008 NPRM proposal. We received a number of comments from the 2008 NPRM regarding this proposal, specifically concerns about applying this 10 percent standard to new data elements and suggestions for a phased-in approach to applying the data quality standards. We considered these comments, however, for reasons detailed below, we retain our proposal of a 10 percent standard for data quality.
As described in the 2008 NPRM, we considered decreasing the acceptable amount of errors permitted in the AFCARS data files to no more than five percent in order to ensure that we receive better quality data. As noted earlier, a number of public commenters and stakeholders have criticized the quality of AFCARS data. Although title IV–E agencies and ACF have made great strides in improving the quality of data over the past few years, we believe there is room for significantly more progress. Decreasing the acceptable threshold for compliance would be one avenue to compel title IV–E agencies to continue to improve their data. On the other hand, by increasing the number and breadth of the internal consistency checks and adding cross-file checks to the range of assessments that we perform on a title IV–E agency's data, we are setting a higher bar for compliance. Further, we acknowledge that by adding new data elements and applying compliance standards, including error specifications, to the adoption records in the adoption and guardianship assistance data file and requiring that the title IV–E agency report historical information for certain data elements, we are asking title IV–E agencies to report more information that will be subject to the compliance assessments, thereby increasing the likelihood of errors. We believe, therefore, that the most appropriate balance is to leave the numeric standard at 10 percent.
In paragraph (e), we propose the methodology for determining compliance and a title IV–E agency's opportunity to submit corrected data where ACF has initially determined that the title IV–E agency's original submission does not meet the AFCARS standards. These data elements were proposed in the 2008 NPRM and are slightly modified in this proposal to include adoption records in the adoption and guardianship assistance data file in the compliance determination process, and exempt specific optional populations, as described in section 1355.45(a). The comments from the 2008 NPRM on this data element were mostly supportive, therefore our approach to compliance determination is the same.
In paragraph (e)(1), we propose that we first determine whether the title IV–E agency's out-of-home care data file and adoption records in the adoption and guardianship assistance data file meet the data file standards (
In paragraph (e)(2), we propose that we will then determine whether the title IV–E agency's out-of-home care data file and the adoption records in the adoption and guardianship assistance data file separately meet the data quality standards described in paragraph (d) of this section, if the data file standards, described in paragraph (c), are satisfied. We will calculate the error rates for each data element to determine if any one of them exceeds the outlined data quality standards. This is the same process by which we calculate the error rates for existing AFCARS data files.
In paragraph (e)(3), we propose procedures for a title IV–E agency to submit a corrected data file(s) to ACF if the title IV–E agency's data file(s) does not initially meet the data file and data quality standards. If the title IV–E agency does not meet the data file standards or the data quality standards (with the exception of the standard for tardy transactions, which is discussed below), a title IV–E agency will have until the deadline for submitting data for the subsequent report period to make changes to the data and submit the corrected data file to ACF. This timeframe for the title IV–E agency to submit corrected data is mandated by section 474(f)(1) of the Act. However, if a title IV–E agency does not meet the data quality standard related to tardy transactions, the title IV–E agency may not `correct' these dates. This is because according to the removal transaction date and exit transaction date data elements in sections 1355.43(d)(2) and 1355.43(g)(2) of the out-of-home care data file, these dates must be computer generated and non-modifiable to reflect the data entry date and cannot be modified. The title IV–E agency is not permitted to change an entered transaction date for these data elements, and since the law requires that a title IV–E agency have another opportunity to submit data files that meet the standards, ACF will look towards the
For example, a title IV–E agency submits AFCARS data files for the report period ending March 31 on May 1 (due on April 30). ACF assesses the data files and notifies the title IV–E agency that the data files have not met the timely submission standard or the data quality standards for missing data and tardy transactions. The title IV–E agency must correct the data in the out-of-home care data file and the adoption records in the adoption and guardianship assistance data file so that missing data comprises no more than 10 percent of the applicable records in each data element and submit these corrected data files on time for the next submission by October 30. In addition, the title IV–E agency's data files for the report period ending September 30, also submitted on October 30, must meet the data quality standards related to the tardy transactions. If all of these conditions are met, and the corrected data files contain no new errors in excess of the standards, ACF can then determine the title IV–E agency's data submission in compliance with the AFCARS standards.
The title IV–E agency need not develop an actual corrective action plan that outlines how the title IV–E agency plans to comply with the data standards, as is required in other program improvement efforts in child welfare (
In paragraph (f), we propose to determine that a title IV–E agency has not complied with the AFCARS requirements if the title IV–E agency either does not submit corrected out-of-home care and adoption and guardianship assistance data files, or does not submit corrected data files that meet the compliance standards in paragraphs (c) and (d) of this section. A title IV–E agency will not be found noncompliant for failure to collect data on, or errors in data pertaining to optional populations, specified in section 1355.45(a). This final determination of noncompliance means that ACF will withhold financial penalties as outlined in section 1355.46. We did not receive substantive comments on this section from the 2008 NPRM.
In paragraph (g), we propose, as we did in the 2008 NPRM, that ACF may use other monitoring tools that are not explicitly mentioned in regulation to determine whether the title IV–E agency meets all AFCARS requirements. For example, we may wish to continue to conduct onsite reviews in some format to ensure proper data mapping or provide other technical assistance to ensure valid and quality data. We currently use this approach in AFCARS by conducting onsite assessment reviews of a title IV–E agency's process to submit AFCARS data, including validating that the information in case files is accurately portrayed in the AFCARS submission. Through these assessment reviews we have found that title IV–E agencies may be in compliance with the AFCARS data standards, but not in compliance with all the AFCARS requirements. For example, through the aforementioned error checks, which we expect to be conducted automatically upon receipt of the data, we cannot determine whether the title IV–E agency is submitting the entire or the correct reporting population. Commenters to the 2008 NPRM suggested that this section is too open-ended, and advocated for full disclosure of all proposed assessment types. However, through the assessment reviews, we have been able to provide title IV–E agencies with targeted technical assistance on how to meet all aspects of the AFCARS requirements. We have often heard from States that the onsite activities tailored to a title IV–E agency's system and programs are beneficial and provide the State with valuable technical assistance. Therefore, we want to reserve our ability to develop and conduct these and other monitoring activities for AFCARS, and do not want to tie ourselves to a particular approach which may need to change over time.
In section 1355.46, we propose how ACF will assess and take penalties for a title IV–E agency's noncompliance with AFCARS requirements outlined in section 1355.45. The penalty structure we propose is consistent with section 474(f) of the Act, and is similar to that proposed in the 2008 NPRM. Commenters to the 2008 NPRM were opposed to ACF assessing penalties and suggested that we use incentives in lieu of or in combination with penalties or alternately, allow title IV–E agencies to reinvest funds to encourage data quality improvement. Commenters in response to the 2008 NPRM also suggested that we phase-in or delay enforcing the penalties. We considered these comments, however, Pub. L. 108–145 added paragraph (f) to section 474 of the Act which requires that the Department take specific fiscal penalties for a title IV–E agency's lack of compliance with AFCARS standards. There is no provision in this law for incentives or reinvestment. In addition, penalties have already been delayed since January 2002, when we discontinued withholding Federal funds for a title IV–E agency's failure to comply with AFCARS requirements (see ACYF–CB–IM–02–03) and in ACYF–CB–IM–04–04 we notified title IV–E agencies that we would not assess penalties until we issue revised final AFCARS regulations, the subject of this proposed rule. Title IV–E agencies have been aware of our proposed penalty structure since the 2008 NPRM; thus we encourage agencies to begin thinking about how the proposal will affect their AFCARS submissions.
In paragraph (a), we propose that the pool of funds that are subject to a penalty for noncompliance are the title IV–E agency's claims for title IV–E foster care administrative costs for the quarter in which the original data file is due (as opposed to the corrected data file). Therefore, ACF would assess the penalty on the title IV–E agency's claims for the third quarter of the Federal fiscal year for data files due on April 30, and on the first quarter of the Federal fiscal year for data files due on October 30. Such administrative costs are inclusive of claims for training, but would not include Statewide or Tribal Automated Child Welfare Information System (SACWIS/TACWIS) costs. We believe that this provision is consistent with the statutory language in section 474(f)(2) of the Act, which requires that the pool of funds subject to the penalty is the amount expended by the title IV–E agency for administration of foster care activities under the title IV–E plan approved under this part, meaning all title IV–E foster care administrative costs. Further, the law specifies that the pool be comprised of the title IV–E
Commenters in response to the 2008 NPRM expressed concerns to the proposal for this section over the assessment of penalties for completing various data elements. Specifically, commenters were concerned about the lack of implementation period in the 2008 NPRM proposal prior to the imposition of penalties, and the potential for title IV–E agencies to be penalized for not collecting data on new elements prior to the implementation of the final rule. We acknowledge these comments and intend to provide more specifics on implementation issues in the Final Rule after receiving and reviewing comments.
In paragraph (b), we propose specific penalty amounts for noncompliance consistent with section 474(f)(2) of the Act. The statute specifies the amount of each penalty for noncompliance and requires that penalties continue until the title IV–E agency is able to meet the standards. It is possible that the calculated penalty amounts could be smaller than those in the existing regulation; however, a penalty that continues until a title IV–E agency's data file complies with the AFCARS standards provides an incentive for title IV–E agencies to correct their data in a timely manner. Our proposal for paragraphs (b)(1) and (2) is unchanged from the 2008 NPRM.
Commenters to the 2008 NPRM also expressed concern that because we are proposing to require title IV–E agencies to submit longitudinal data files, it is possible that certain data elements that are not permitted to be corrected could forever subject a title IV–E agency to penalties for errors. While this scenario is possible, we believe it is unlikely in most cases. Section 1355.45(d) describes that the AFCARS data file(s) would need to be determined to be out of compliance for 10 percent of the data quality standards in each of the areas of missing data, invalid data, internally inconsistent data, and tardy transactions. Although there are few data elements that a title IV–E agency is not permitted to correct (for example the transaction dates in sections 1355.43(d)(2) and (g)(2)); even if multiple transactions are determined to be incorrect, this does not mean that the title IV–E agency would be determined to be out of compliance based on the 10 percent data quality standard. The title IV–E agency also has an opportunity after the initial period in which a penalty is assessed to correct other data elements that may be determined to be incorrect, therefore a title IV–E agency could, in the end, lower their error rate to not exceed the 10 percent data quality standard.
In paragraph (c), we propose to take an assessed penalty by reducing the title IV–E agency's title IV–E foster care funding following ACF's determination of noncompliance. Our proposal is unchanged from that described in the 2008 NPRM. Commenters to the 2008 NPRM expressed general opposition to our proposal to take the penalty amount from the agency's title IV–E foster care reimbursement. However, section 474(f)(2) of the Act is specific that the penalty must be assessed on the total amount expended by the title IV–E agency for administration of foster care activities under the title IV–E plan.
In paragraph (d), we propose to provide the title IV–E agency with an opportunity to appeal a final determination that the title IV–E agency is out of compliance inclusive of accompanying financial penalties to the HHS Departmental Appeals Board (DAB). Since section 474(f) of the Act does not require any unique appeal rights or time frames regarding AFCARS requirements, all appeals must follow the DAB regulations in 45 CFR part 16. We did not receive comments to the 2008 NPRM on this proposal.
We propose not to retain language that was newly proposed in the 2008 NPRM that a title IV–E agency be liable for applicable interest on the amount of funds we penalize, in accordance with the regulations at 45 CFR 30.18. This language was added to the 2008 NPRM to be consistent with Department-wide regulations and policy on collecting debts owed to the Federal government, however, upon further consideration, we believe that the provision requiring ACF to offset a title IV–E agency's grant award in the amount of the penalty (section 1355.46(c)) makes the need for such language obsolete.
We propose to remove all of the appendices to 45 CFR part 1355 because they contain provisions and charts that are being substantively altered or made
Appendix A contains the data element definitions and instructions for the existing foster care file. We propose instead the out-of-home care data file at proposed section 1355.43. Appendix B contains the adoption data element definitions and instructions for the existing adoption data file. We propose instead that the adoption data file be deleted and information pertaining to adoption be incorporated into the out-of-home care data file at proposed section 1355.43(h). The adoption and guardianship assistance data file is proposed at section 1355.44. Appendix C contains existing technical file submission details. We explained in the discussion of section 1355.42(e) that we propose not to regulate file submission provisions. Appendix D contains the existing foster care and adoption data file layout and summary data file details. We explained in the discussion on section 1355.42(a) that we are eliminating the summary data files and explained in section 1355.42(e) that we are not regulating file layout. Appendix E contains the existing data standards. We propose instead data standards in proposed section 1355.45. We did not receive comments to the 2008 NPRM on this proposal.
Executive Order 12866 requires that regulations be drafted to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this proposed rule is consistent with these priorities and principles. In particular, we have determined that a regulation is the best and most cost effective way to implement the statutory mandate for a data collection system regarding children in foster care and those that are adopted and support other statutory obligations to provide oversight of child welfare programs. Moreover, we consulted with the Office of Management and Budget (OMB) and determined that these rules meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were subject to OMB review.
We have determined that the costs to title IV–E agencies as a result of this rule will not be significant. At least half of the costs that States and Tribes will incur as a result of the revisions to AFCARS will be eligible for Federal financial participation. Depending on the cost category and each agency's approved plans for title IV–E and cost allocation, they may claim allowable costs as Automated Child Welfare Information System costs at the 50 percent rate, administrative costs for the proper and efficient administration of the title IV–E plan at the 50 percent rate, or training of agency staff at the 75 percent rate. We estimate that costs will be approximately $24 million annually for AFCARS for the first five years of implementation, half of which ($12 million) we estimate will be reimbursed by the Federal government as allowable costs under title IV–E. Additional costs to the Federal government to design a system to collect the new AFCARS data are expected to be minimal.
Alternatives Considered: We considered whether alternative approaches could better meet ACF, State, and Tribal needs, but decided that our current approach, as proposed, best meets these needs. First, we considered whether other existing data sets could yield similar information. We determined that AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in foster care and/or achieve adoption or guardianship with the involvement of the State or Tribal title IV–E agency. Further, we are required by section 479 of the Act to establish and maintain such a data system, so other data sources could not meet our statutory mandate.
We also considered whether we should permit title IV–E agencies to sample and report information on a representative population of children. We remain concerned, however, that there may be several significant limitations associated with using a sampling approach for collecting data on children who are in foster care, adoption and guardianship programs. If, under a sampling approach, ACF would be unable to collect reliable sample data for the title IV–E foster care eligibility reviews and the current CFSRs or respond to other initiatives such as the Annual Outcomes Report to Congress and Adoption Incentives using sampling data, the use of AFCARS data would be limited. Second, when using a sample, small population subgroups (
The Secretary certifies under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96–354), that this rule will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to State and Tribal title IV–E agencies.
The Unfunded Mandates Reform Act (Pub. L. 104–4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $146 million. This proposed rule does not impose any mandates on State, local or Tribal governments, or the private sector that will result in an annual expenditure of $100 million or more.
Under the Paperwork Reduction Act (44 U.S.C. ch. 35, as amended) (PRA), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. This proposed rule contains information collection requirements in sections 1355.43, the out-of-home care data file and 1355.44, the adoption and guardianship assistance data file, that the Department has submitted to OMB for its review. In addition, the NPRM proposes to validate whether the title IV–E agency complies with the AFCARS data file and data quality standards
Collection of information for AFCARS is currently authorized under OMB number 0970–0422; however, this NPRM significantly changes the collection requirements by adding longitudinal data requirements and additional data elements in the out-of-home care and adoption and guardianship assistance data files. We estimate that annual burden hours will increase to 568,749 from the currently approved 432,720 hours as a result of the proposed provisions in this NPRM and the inclusion of Tribal title IV–E agencies per section 479B of the Act.
The Department requires this collection of information to address the data collection requirements of section 479 of the Act. Specifically, the law requires the Department to develop a data collection system that can provide comprehensive national information on the demographic characteristics of adopted and foster children and their biological, foster or adoptive parents; the status of the foster care population; the number and characteristics of children placed in or discharged from foster care; children adopted or who have experienced adoption dissolution, and children who are placed in foster care outside of the State or Tribal service area which has placement and care responsibility and the extent and nature of assistance provided by government adoption and foster care programs and the characteristics of the children to whom such assistance is provided. Further, this information is critical to our efforts to: Assess a title IV–E agency's compliance with titles IV–B and IV–E of the Act and the current CFSRs (45 CFR 1355.31 through 1355.37), conduct title IV–E eligibility reviews (45 CFR 1356.71), implement the Adoption Incentive and Legal Guardianship Payments program at section 473A of the Act and for other program purposes previously outlined.
The following are estimates:
We arrived at these estimates after taking into consideration the existing and anticipated foster care, adoption, and guardianship assistance populations; factoring in the increase of burden in accordance with this proposed rule and efficiencies in reporting and the anticipated amount of worker and information system staff time to collect and report the information.
PRA rules require that we estimate the total burden created by this NPRM regardless of what information is already available. Thus, these burden hours are higher than currently authorized by OMB, and may be an overestimate since we are unable to account for information title IV–E agencies currently collect for their own purposes, but ACF proposes to collect for the first time under this NPRM. Below we describe in detail how we arrived at the estimated burden.
1. Our first step in estimating the burden was to estimate the out-of-home care reporting population at the approximate time of implementation. We used information from FY 2012 AFCARS data (the most recent final data available) and applied the following assumptions:
• We assume that the proportion of children in title IV–E agencies with a State Automated Child Welfare Information System (SACWIS) versus non-SACWIS agencies will remain constant at roughly 85/15.
• We assume that the number of children entering the out-of-home care reporting population annually will rise slightly, given that the proposed out-of-home care reporting population now requires a title IV–E agency to continue reporting a child to AFCARS once he or she has entered foster care, regardless of subsequent living arrangements, and includes children whose whereabouts are unknown at the time the child was placed in the placement and care responsibility of the title IV–E agency. We believe this new out-of-home care reporting population will account for a minor increase in the number of children in the out-of-home care reporting population.
• We assume that the number of children who exit the out-of-home care reporting population annually will remain about the same as it is currently.
• We assume that children under the placement and care responsibility of a Tribal title IV–E agency will not represent a significant net increase in the number of children in the out-of-home care reporting population.
Based on AFCARS data from FY 2012, 397,122 children were in foster care on September 30, 2012. Therefore, we estimate the following annual caseload figures: 337,554 children served in SACWIS title IV–E agencies and 59,586 in non-SACWIS title IV–E agencies; 216,140 children with new entries into foster care in SACWIS title IV–E agencies, and 38,142 in non-SACWIS title IV–E agencies; 240,923 children will exit foster care, approximately 51,225 of whom will exit to adoption and 16,418 will exit to guardianship. We do not expect any of the Tribal title IV–E agencies to have Tribal versions of SACWIS (TACWIS) for several years and we do not expect the inclusion of Tribal title IV–E agencies will result in a significant net increase in the numbers of children in the out-of-home care reporting population.
2. Our second step in estimating the burden was to estimate the number of recordkeeping hours that workers will spend on meeting AFCARS requirements. We used information from our existing AFCARS collection approved by OMB as a foundation which includes the following assumptions:
• Recordkeeping will require more time in a non-SACWIS title IV–E agency than it does for a SACWIS one.
• Entering the applicable out-of-home care data elements for a child newly entering the out-of-home care reporting population will take approximately one hour for SACWIS agencies and 1.5 hours for non-SACWIS agencies.
• Updating the child's out-of-home care record on average will take 0.35 hours for SACWIS agencies and 0.50 hours for non-SACWIS ones annually.
• Workers will take approximately 0.10 hour to enter exit data for non-adoption/guardianship cases and an additional 30 minutes (0.60 hours total) for children exiting through adoption and guardianship.
• Recordkeeping may require slightly more time in a Tribal IV–E agency due to staff being unfamiliar with the procedures.
We multiplied the time spent on the various recordkeeping activities as outlined in this step by the number of children in foster care described above in step 1, and arrived at a total of 479,204 recordkeeping hours for all children in the out-of-home care reporting population annually.
3. Our third step in estimating the burden was to estimate the time spent on actually reporting the information (
• We anticipate that title IV–E agencies will be using a technology such as XML to transmit the data and will need time to become familiar with and efficient in reporting their data in the first years of implementing the new procedures. This will increase the amount of time spent reporting.
• The proposed out-of-home care data file is comprised of many data elements that are currently in the existing foster care and adoption data files, but also additional data elements not currently in either existing data file. To accommodate the increased number of data elements (from both the current foster care and adoption data files) in the proposed out-of-home care data file, we anticipate that our estimate should be higher than the sum of the existing OMB-approved reporting burden hours of eight hours for the foster care data file and four hours for the adoption data file.
We estimate that the proposed changes to the out-of-home care data file will increase the reporting burden;
4. Finally, we calculated the total annual burden hours for the out-of-home care data file as 481,214 hours (479,204 total annual recordkeeping burden + 2,010 annual reporting burden = 481,214.)
Dividing this national and annual figure by the 67 title IV–E agencies and two semi-annual report periods, we arrive at approximately 3,591.15 burden hours per respondent per 6 month report period for the out-of-home care data file. ((481,214 ÷ 67 title IV–E agencies) ÷ 2 report periods = 3,591.15 burden hours per respondent per 6 month report period.)
1. We first estimated the annual burden associated with the title IV–E adoption assistance data elements.
• Data from the Title IV–E Programs Quarterly Financial Report, CB–496, for FY 2013 indicate 417,530 children receiving title IV–E adoption assistance. As a result of the changes in title IV–E adoption assistance eligibility included in section 473(e) of the Act, as amended by Pub. L. 110–351, we expect the percentage of children eligible for title IV–E adoption assistance will increase until FY 2018 when virtually all will be title IV–E eligible.
• We expect workers to spend 0.2 hours annually recording data in accordance with this NPRM on each child under a title IV–E adoption assistance agreement. Most information collected in the adoption and guardianship assistance data file is basic demographics and is static or can be easily found on the child's title IV–E assistance agreement. Most title IV–E adoption assistance agreements are updated or changed on an annual or biennial basis, unless the family circumstances change, requiring small amounts of recordkeeping.
• We calculate recordkeeping for title IV–E adoption assistance information to take approximately 83,506 hours (0.2 hours × 417,530 children).
2. We then estimated the annual burden associated with the title IV–E guardianship assistance data elements.
• The title IV–E guardianship assistance program is an optional program that any title IV–E agency may choose to make available at any point. For FY 2013, there were 12,537 children receiving title IV–E guardianship assistance payments with 26 title IV–E agencies reporting (CB–496). We project that the numbers of children receiving title IV–E guardianship assistance payments will continue to increase as more title IV–E agencies opt to provide title IV–E guardianship assistance payments.
• Most information collected in the adoption and guardianship assistance data file is basic demographics and is static or can be easily found on the child's title IV–E assistance agreement. Further, most title IV–E guardianship assistance agreements are updated or changed on an annual or biannual basis, unless family circumstances change, requiring small amounts of recordkeeping. However, title IV–E agencies will differ in their experience with collecting data on children under title IV–E guardianship assistance agreements and some may need more time to gather the necessary information. For that reason, we are increasing our estimate for this recordkeeping over the estimate for the title IV–E adoption assistance data elements to approximately 0.3 hours annually.
• We calculate recordkeeping for the title IV–E guardianship assistance information to take approximately 3,761 burden hours (0.3 hours × 12,537 children). As is the case with all estimates in this section, we welcome comments on these assumptions and estimates.
3. In addition, we estimate that burden associated with actually reporting the adoption and guardianship assistance data file to ACF will take each title IV–E agency 2 hours each report period to complete the work necessary to submit the file. We then multiplied 67 title IV–E agencies and two report periods with the 2 reporting burden hours, which results in an annual reporting burden of 268 hours. (67 title IV–E agencies × 2 report periods × 2 burden hours = 268 total reporting burden hours annually.)
4. Finally, we calculated the total annual burden hours for the adoption and guardianship assistance data file as 87,267 hours by combining the total recordkeeping (83,506 + 3,761 = 87,267) and the reporting burden hours (268). (87,267 + 268 = 87,535 total annual burden hours.) Dividing this national total by the 67 title IV–E agencies and two 6 month report periods we arrive at approximately 653.25 burden hours per respondent per 6 month report period. ((87,535 ÷ 67 title IV–E agencies) ÷ 2 report periods = 653.25 burden hours
We have used the total cost and total burden hour estimates to provide additional detail on projected average cost for each State and Tribal title IV–E agency implementing the changes described in this NPRM. Our estimates are as follows:
In making the above estimates, we want to acknowledge: (1) We have used average figures for title IV–E agencies of very different sizes and (2) these are rough estimates of the burden on Tribal title IV–E agencies because they have not operated AFCARS previously and we have limited information to use in making these estimates. We welcome comments on these factors and all others in this section.
ACF will consider comments by the public on this proposed collection of information in the following areas:
1. Evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility;
2. Evaluating the accuracy of ACF's estimate of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhancing the quality, usefulness, and clarity of the information to be collected; and
4. Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology,
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
This regulation is not a major rule as defined in 5 U.S.C. Chapter 8.
Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106–58) requires Federal agencies to determine whether a proposed policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing criteria specified in the law. These proposed regulations will not have an impact on family well-being as defined in the law.
Executive Order 13132 on Federalism requires that Federal agencies consult with State and local government officials in the development of regulatory policies with Federalism implications. Consistent with Executive Order 13132, we specifically solicit comment from State and local government officials on this proposed rule.
ACF published a
Several Indian Tribes responded with suggestions for including additional data elements in AFCARS specifically on the Indian Child Welfare Act of 1978 (ICWA), Pub. L. 95–608, and its impact on Tribal children. ICWA was passed in response to concerns about the large number of Indian children who were being removed from their families and Indian Tribes and the failure of States to recognize the culture and Tribal relations of Indian people. However, ICWA is outside ACF's purview,
Generally, there is support from the Tribal commenters to issue this regulation, even in the face of building an information system. We value the comments we have received from Tribal representatives and believe that the comments will enhance the new AFCARS requirements for Tribal title IV–E agencies, as well as State title IV–E agencies. Throughout this NPRM we have outlined our need to issue new requirements for AFCARS so that we can support longitudinal data and additional data elements that will drastically increase our tracking and knowledge of children who enter foster care and who exit to adoption or legal guardianship. We believe that our proposal to enhance AFCARS will expand and enrich our knowledge about children who are in the placement and care responsibility of Tribal title IV–E agencies, which is a benefit to not only Indian Tribes but also State and Federal governments that oversee child welfare programs.
Adoption and foster care, Child welfare, Grant programs—social programs.
For the reasons set forth in the preamble, we propose to amend 45 CFR part 1355 as follows:
45 U.S.C. 620
(a) This section applies to State and Tribal title IV–E agencies.
(b) An agency described in paragraph (a) of this section must collect information on the characteristics and experiences of a child in the reporting populations described in § 1355.41. The title IV–E agency must submit the information collected to ACF on a semi-annual basis in an out-of-home care data file and adoption and guardianship assistance data file as required in § 1355.42, pertaining to information described in §§ 1355.43 and 1355.44.
(a)
(i) A child in foster care as defined in § 1355.20.
(ii) A child under the placement and care responsibility of another public agency that has an agreement with the title IV–E agency pursuant to section 472(a)(2)(B) of the Act, or an Indian Tribe, Tribal organization or consortium with which the title IV–E agency has an agreement or contract and on whose behalf title IV–E foster care maintenance payments are made.
(iii) A child who runs away or whose whereabouts are unknown at the time the child is placed under the placement and care responsibility of the title IV–E agency.
(2) Once a child enters the out-of-home care reporting population, the child remains in the out-of-home care reporting population through the end of the report period in which the title IV–E agency's placement and care responsibility ends, regardless of any subsequent living arrangement.
(3) For AFCARS purposes, an out-of-home care episode is defined as the period between when a child enters the out-of-home care reporting population, as described in paragraph (a)(1) of this section, and when the title IV–E agency's placement and care responsibility ends.
(b)
(i) In a finalized adoption under a title IV–E adoption assistance agreement pursuant to section 473(a) of the Act with the reporting title IV–E agency that is or was in effect at some point during the current report period; or
(ii) In a legal guardianship under a title IV–E guardianship assistance agreement pursuant to section 473(d) of the Act with the reporting title IV–E agency that is or was in effect at some point during the current report period.
(2) A child remains in the adoption or guardianship assistance reporting population through the end of the report period in which the title IV–E agreement ends or is terminated.
(a)
(b)
(1) The title IV–E agency must report the most recent information for the applicable data elements in § 1355.43(a) and (b).
(2) Except as provided in paragraph (b)(3) of this section, the title IV–E agency must report the most recent information and all historical information for the applicable data elements described in § 1355.43(c), (d), (e), (f), (g) and (h).
(3) For a child who had an out-of-home care episode(s) as defined in § 1355.41(a) prior to the effective date of this section, the title IV–E agency must report the information for the data elements described in § 1355.43(d)(1), (g)(1) and (g)(3) for the out-of-home care episode(s) that occurred prior to the effective date of the final rule.
(c)
(d)
(e)
(f)
(a)
(2)
(3)
(4)
(b)
(ii)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(4)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(8)
(9)
(10)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(11)
(12)
(i)
(ii)
(iii)
(iv)
(
(
(
(
(
(
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(13)
(i)
(ii)
(iii)
(14)
(i)
(ii)
(iii)
(15)
(16)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(17)
(18)
(i)
(ii)
(19)
(i)
(ii)
(c)
(ii)
(2)(i)
(ii)
(3)(i)
(ii)
(4)
(d)
(i) For a child who is removed and is placed initially in foster care, indicate the date that the title IV–E agency received placement and care responsibility.
(ii) For a child who ran away or whose whereabouts are unknown at the time the child is removed and is placed in the placement and care responsibility of the title IV–E agency, indicate the date that the title IV–E agency received placement and care responsibility.
(iii) For a child who is removed and is placed initially in a non-foster care setting, indicate the date that the child enters foster care as the date of removal.
(2)
(3)
(4)
(5)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
(xxv)
(xxvi)
(xxvii)
(e)
(2)
(3)
(i)
(ii)
(iii)
(v)
(vi)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(19)
(20)
(21)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(22)
(23)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(24)
(25)
(i) Specialized education.
(ii) Treatment.
(iii) Counseling.
(iv) Other services.
(f)
(2)
(3)
(i)
(ii)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(13)
(g)
(1)
(2)
(3)
(4)
(h)
(1)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(8)
(9)
(10)
(11)
A title IV–E agency must collect and report the following information for each child in the adoption and guardianship assistance reporting population, if applicable based on § 1355.42(c).
(a)
(2)
(3)
(b)
(ii)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(4)
(c)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(1)
(2)
(3)
(d)
(e)
(2) If each data file meets the data file standards, ACF will then determine whether each data file meets the data quality standards in paragraph (d) of this section. For every data element, we will divide the total number of applicable records in error (numerator) by the total number of applicable records (denominator), to determine whether the title IV–E agency has met the applicable data quality standards.
(3) In general, a title IV–E agency that has not met either the data file standards or data quality standards must submit a corrected data file(s) no later than when data is due for the subsequent six month report period (
(f)
(g)
(a)
(b)
(1)
(2)
(c)
(d)
Office of Elementary and Secondary Education, Department of Education (Department).
Final requirements.
The Assistant Secretary for Elementary and Secondary Education adopts final requirements for the School Improvement Grants (SIG) program, authorized under section 1003(g) of title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA). These final requirements make changes to the current SIG program requirements and implement language in the Consolidated Appropriations Act, 2014, that allows local educational agencies (LEAs) to implement additional interventions, provides flexibility for rural LEAs, and extends the grant period from three to five years. Additionally, the final requirements make changes that reflect lessons learned from four years of SIG implementation.
These requirements are effective March 11, 2015.
Elizabeth Ross, U.S. Department of Education, 400 Maryland Avenue SW., Room 3C116, Washington, DC 20202. Telephone: (202) 260–8961 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.
Purpose of This Regulatory Action: These final requirements implement language in the Consolidated Appropriations Act, 2014, to allow LEAs to implement evidence-based, whole-school reform strategies and State-determined school improvement intervention models, to provide flexibility for rural LEAs implementing a SIG intervention, and to extend the allowable grant period from three to five years. Additionally, the final requirements make changes that reflect lessons learned from four years of SIG implementation. This regulatory action is authorized by the Consolidated Appropriations Act, 2014, and 20 U.S.C. 6303(g).
Summary of the Major Provisions of This Regulatory Action: As discussed in more depth in the notice of proposed requirements (NPR) published in the
The Department also revises the current SIG requirements to strengthen program implementation based on lessons learned and input from stakeholders by: Adding an intervention model that focuses on improving educational outcomes in preschool and early grades; adding an LEA requirement to demonstrate the appropriateness of the chosen intervention model and to take into consideration family and community input in the selection of the model; adding an LEA requirement to continuously engage families and the community throughout implementation; adding an LEA requirement to monitor and support intervention implementation; adding an LEA requirement to regularly review external providers' performance and hold external providers accountable; eliminating the “rule of nine”; and revising reporting requirements.
The Department also made revisions to clarify the current SIG requirements: Modifying the teacher and principal evaluation and support system requirements under the transformation model; clarifying the rigorous review process under the restart model; clarifying renewal criteria; defining “greatest need” to include priority and focus schools for SEAs with approved ESEA flexibility requests; clarifying the timeline under which previously implemented interventions (in whole or in part) may continue as part of a SIG intervention; and clarifying requirements related to the posting of LEAs' SIG applications.
Additionally, the Department has removed references to fiscal year 2009 and fiscal year 2010 funds and the differentiated accountability pilot because those references are no longer necessary.
Finally, and as described in more detail in the
Finally, and as described in more detail in the
Costs and Benefits: The Department believes that the benefits of this regulatory action outweigh any associated costs to SEAs and LEAs, which would be financed with grant funds. The benefits of this action will be more effective State and local actions, using Federal funds, to turn around their lowest-performing schools and achieve significant improvement in educational outcomes for the students attending those schools. Please refer to the
Consistent with Executive Order 12866, the Secretary has determined that this action is economically significant and, thus, is subject to review by the Office of Management and Budget under the order.
20 U.S.C. 6303(g); Consolidated Appropriations Act, 2014 (Pub. L. 113–76).
We published a notice of proposed requirements for this program in the
There are differences between the proposed requirements and these final requirements as discussed in the
Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition we do not address general comments that raised concerns not directly related to the proposed requirements.
Although the needs analysis required under section I.A.4(a)(1) must be conducted as part of the application process and prior to receipt of SIG funds, an LEA may use the SIG funds it receives to conduct additional needs assessment activities, including, for example, more comprehensive diagnostic analyses, capacity and asset assessments, and assessments of students' health needs, so long as those activities are a part of the LEA's approved SIG application, are related to the implementation of the SIG model, and are reasonable and necessary. Additionally, an SEA may use its section 1003(a) funds or the SIG funds it reserves for administration, evaluation, and technical assistance expenses to support the costs of needs analyses by its LEAs with SIG schools. Because not all LEAs will benefit from each of these activities, we decline to require them.
We also agree that an SEA should continue to monitor and work with its LEAs and schools to ensure they possess the capacity to implement a SIG model prior to awarding funds, including by providing specific tools that an LEA can use in assessing and building capacity. To that end, we note that, under section I.A.4(b), an SEA must consider the LEA's capacity to implement the chosen
We do not believe it is worthwhile to place a limit on the amount of SIG funds an LEA may use for a year of planning and pre-implementation activities or for a year of activities to sustain reforms following full implementation, and would expect that in either case the amount needed by an LEA is significantly less than the $2 million per year that it is eligible to receive. We remind SEAs and LEAs that an LEA may receive funds only for activities that are a part of the LEA's approved SIG application, are related to the implementation of the SIG model, and are reasonable and necessary.
We also received several comments asking for changes to the turnaround principles and to the requirement that a State-determined model include increased learning time (ILT). Several commenters suggested it is too restrictive to require ILT in all State-determined models and requested that the ILT requirement be eliminated or modified to be less restrictive.
Several commenters expressed concern that the requirements for the
We also note that, as described in question I–9 of the March 1, 2012, SIG Guidance, available at
We intend to identify, from among the models submitted for review, those that meet the requirements in advance of the competition for fiscal year 2014 SIG funds. An LEA seeking to use SIG funds to implement, in partnership with a model developer, an evidence-based, whole-school reform model would be permitted to choose from among the models so identified by the Department.
We will provide information regarding the submission and review of prospective models on our Web site at
Conversely, several commenters expressed concerns that the requirements for whole-school reform models are not sufficiently specific or stringent. One of these commenters recommended that the Department consider incorporating required elements of other SIG models into the definition of “whole-school reform model,” which the commenter asserted would result in increased rigor. Another commenter suggested that the Department require whole-school reform models to include student health and wellness programs, while another commenter recommended specifying that the models include professional learning for instructional support staff in addition to teachers. Lastly, one commenter suggested that an SEA would have difficulty in monitoring an LEA implementing a whole-school reform model, due to a perceived lack of specific requirements for this model.
We decline, however, to specify what constitutes a “record of success” because we believe the current requirement strikes the appropriate balance between requiring a demonstration of some improvement while allowing the SEA the discretion to assess the sufficiency of the individual's or entity's record. To ensure that the SEA uses a rigorous process to make this determination, however, we are clarifying in paragraph (b)(2) of the definition that the SEA must use a rigorous review process to select the individual or entity and that the process must include a determination that the individual or entity is likely to produce strong results for the school. To prevent the definition from becoming too restrictive, however, we are eliminating the requirement that the whole-school reform model developer have a record of success implementing the model that the LEA seeks to implement in a school and replacing it with a requirement that the developer have a record of success in implementing any whole-school reform model.
In addition, we believe that any additional burden associated with the demonstration required would be outweighed by the benefits of implementing reforms that have been shown through rigorous research to be effective in improving student achievement and attainment.
In designing the new models, we built in sufficient flexibility such that the rural flexibility is not necessary to make these models available to rural LEAs. The new models offer a broader array of intervention strategies among which a rural LEA may select the one that best fits the unique context and needs of its schools, based in part on the district's capacity to implement the model. The addition of these new models, along with the rural flexibility provided in the turnaround and transformation models, should offer enough options such that a rural LEA is able to select and successfully implement an appropriate SIG model.
An SEA is required to post on its Web site, within 30 days of awarding SIG funds, all approved LEA applications. Because a rural LEA requesting to modify an element of a SIG model must demonstrate in its application how it will meet the intent and purpose of the original element, information about rural LEAs and any modifications to the models they are implementing will be available as part of the LEA's application on the SEA's Web site.
The requirements of the new early learning model in the SIG program relating to high-quality preschool programs are based closely on the related requirements in the Department's Preschool Development Grants program, which defines “high-quality preschool program” to include elements that research suggests are most effective in promoting school readiness and improving long-term educational and life outcomes, especially for children from low-income families. More information on the Preschool Development Grants program may be found at
A couple of commenters recommended that if a SIG elementary school contracts with a child care or Head Start program to deliver preschool services, it should be required to describe how it will work to coordinate with the school on appropriate and effective transitions to build continuity of high-quality early learning. One commenter specifically suggested that libraries be listed as an eligible entity and allowable partner under the proposed early learning model. One commenter requested that the Department add a new element to the early learning model, requiring partnerships with external providers, such as community-based organizations and community-based media outlets, in order to increase the quality of the early learning program and its connections to the larger community.
We also note that an LEA implementing the transformation model already must use the results of the evaluations for personnel decisions, in accordance with section I.A.2(d)(1)(A)(ii)(6), and that an LEA implementing the early learning model already must use the results of the evaluations for personnel decisions, in accordance with section I.A.2(f)(3).
However, one commenter opposed requiring an LEA to demonstrate in its application how it will meaningfully engage families and the community in the implementation of its chosen intervention, warning that the need to provide evidence of parent investment up front could prevent successful alternative operators (which we interpret to mean external providers) from working with SIG schools.
We do not agree that requiring a demonstration of parental involvement will prevent high-quality external providers from working with an LEA in SIG schools. In fact, we believe that the requirement that an LEA engage families and the community early in the process of planning its SIG intervention will result in increased transparency and accountability related to the selection of, and subsequent implementation by, external providers, which will help with implementing the model successfully.
We recognize that an LEA may not have identified the external provider it will use at the time it applies for a SIG award; consequently, under section I.A.4(a)(4), the LEA must demonstrate that it will recruit, screen, and select external providers to ensure their quality and regularly review and hold the external providers accountable. We believe this requirement is sufficient to ensure that an LEA uses external providers effectively. We also believe that most LEAs will use the pre-implementation or planning period to recruit and select external providers and develop the performance metrics against which the external provider will be evaluated. Moreover, under section I.A.4(a)(3), any external provider that will be used to implement the chosen SIG model must be in place on the first day of the first school year of full implementation.
We acknowledge that smaller LEAs may face capacity challenges and caution LEAs to assess their ability to hold external providers accountable before committing to use them. We believe, however that the significant amount of SIG funding available to implement the intervention models will help these LEAs overcome any such limitations.
We have previously issued guidance on external providers, available at
With regard to the comment that we should permit an SEA to provide SIG funds to priority schools only, we note that under section II.B.7, an SEA must, in making funding decisions, give priority to LEAs with priority schools, and that under section II.A.7 an LEA must apply to serve all of its priority schools before it may apply to serve one or more focus schools. Accordingly, a focus school may be served under SIG only if the LEA in which it is located is already serving all of its priority schools (or the LEA has no priority schools) and the SEA has already funded all LEAs with priority schools that submit approvable SIG applications.
We do not believe, however, that the community schools strategy, by itself, would be sufficient to ensure that communities and schools undertake the kind of rigorous, transformational changes required to break the cycle of failure in our lowest-performing schools and maximize the effective use of taxpayer dollars under the SIG program. SIG performance data suggest that the schools adopting the most rigorous interventions, such as changes in leadership and staffing under the turnaround model and new school management under the restart model, generate the highest gains in student achievement. For these reasons, we decline to make “community schools” a new model eligible for funding under the SIG program or to make it the sole model eligible for new SIG funds.
The Assistant Secretary for Elementary and Secondary Education establishes the following requirements for the SIG program. The Assistant Secretary may use these requirements for any year in which funds are appropriated for SIG authorized under 1003(g) of the ESEA:
A.
1.
(a)
(1) A Tier I school is a title I school in improvement, corrective action, or restructuring that is identified by the SEA under paragraph (a)(1) of the definition of “persistently lowest-achieving schools.”
(2) At its option, an SEA may also identify as a Tier I school an elementary school that is eligible for title I, Part A funds that—
(A)(i) Has not made adequate yearly progress for at least two consecutive years; or
(ii) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and
(B) Is no higher achieving than the highest-achieving school identified by the SEA under paragraph (a)(1)(A) of the definition of “persistently lowest-achieving schools.”
(b)
(1) A Tier II school is a secondary school that is eligible for, but does not receive, title I, Part A funds and is identified by the SEA under paragraph (a)(2) of the definition of “persistently lowest-achieving schools.”
(2) At its option, an SEA may also identify as a Tier II school a secondary school that is eligible for title I, Part A funds that—
(A)(i) Has not made adequate yearly progress for at least two consecutive years; or
(ii) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and
(B)(i) Is no higher achieving than the highest-achieving school identified by the SEA under paragraph (a)(2)(A) of the definition of “persistently lowest-achieving schools”; or
(ii) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years.
(c)
(1) A Tier III school is a title I school in improvement, corrective action, or restructuring that is not a Tier I or a Tier II school.
(2) At its option, an SEA may also identify as a Tier III school a school that is eligible for title I, Part A funds that—
(A)(i) Has not made adequate yearly progress for at least two years; or
(ii) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and
(B) Does not meet the requirements to be a Tier I or Tier II school.
(3) An SEA may establish additional criteria to use in setting priorities among LEA applications for funding and to encourage LEAs to differentiate among Tier III schools in their use of School Improvement Grants funds.
(d)
A school among the lowest five percent of title I schools in the State based on the achievement of the “all students” group in terms of proficiency on the statewide assessments that are part of the SEA's differentiated recognition, accountability, and support system, combined, and has demonstrated a lack of progress on those assessments over a number of years in the “all students” group;
A title I-participating or title I-eligible high school with a graduation rate less than 60 percent over a number of years; or
A Tier I or Tier II school under the SIG program that is using SIG funds to implement a school intervention model.
(e)
A school that has the largest within-school gaps between the highest-achieving subgroup or subgroups and the lowest-achieving subgroup or subgroups or, at the high school level, has the largest within-school gaps in graduation rates; or
A school that has a subgroup or subgroups with low achievement or, at the high school level, low graduation rates.
An SEA must also identify as a focus school a title I high school with a graduation rate less than 60 percent over a number of years that is not identified as a priority school.
These determinations must be based on the achievement and lack of progress over a number of years of one or more subgroups of students identified under ESEA section 1111(b)(2)(C)(v)(II) in terms of proficiency on the statewide assessments that are part of the SEA's differentiated recognition, accountability, and support system, combined, or, at the high school level, graduation rates for one or more subgroups.
2.
(a)
(1) A turnaround model is one in which an LEA must implement each of the following elements:
(A) Replace the principal and grant the principal sufficient operational flexibility (including in staffing, calendars/time, and budgeting) to implement fully each element of the turnaround model.
(B) Using locally adopted competencies to measure the effectiveness of staff who can work within the turnaround environment to meet the needs of students—
(i) Screen all existing staff and rehire no more than 50 percent; and
(ii) Select new staff.
(C) Implement such strategies as financial incentives, increased opportunities for promotion and career growth, and more flexible work conditions that are designed to recruit, place, and retain staff with the skills necessary to meet the needs of the students in the turnaround school.
(D) Provide staff ongoing, high-quality, job-embedded professional development that is aligned with the school's comprehensive instructional program and designed with school staff to ensure that they are equipped to facilitate effective teaching and learning and have the capacity to successfully implement school reform strategies.
(E) Adopt a new governance structure, which may include, but is not limited to, requiring the school to report to a new “turnaround office” in the LEA or SEA, hire a “turnaround leader” who reports directly to the Superintendent or Chief Academic Officer, or enter into a multi-year contract with the LEA or SEA to obtain added flexibility in exchange for greater accountability.
(F) Use data to identify and implement an instructional program that is research-based and vertically aligned from one grade to the next as well as aligned with State academic standards.
(G) Promote the continuous use of student data (such as from formative, interim, and summative assessments) to inform and differentiate instruction in order to meet the academic needs of individual students.
(H) Establish schedules and implement strategies that provide increased learning time (as defined in these requirements).
(I) Provide appropriate social-emotional and community-oriented services and supports for students.
(2) A turnaround model may also implement other strategies such as—
(A) Any of the required and permissible activities under the transformation model; or
(B) A new school model (
(b)
(1) A restart model is one in which an LEA converts a school or closes and reopens a school under a charter school operator, a charter management organization (CMO), or an education management organization (EMO) that has been selected through a rigorous review process. (A CMO is a non-profit organization that operates or manages charter schools by centralizing or sharing certain functions and resources among schools. An EMO is a for-profit or non-profit organization that provides “whole-school operation” services to an LEA.) The rigorous review process must include a determination by the LEA that the selected charter school operator, CMO, or EMO is likely to produce strong results for the school. In making this determination, the LEA must consider the extent to which the schools currently operated or managed by the selected charter school operator, CMO, or EMO, if any, have produced strong results over the past three years (or over the life of the school, if the school has been open for fewer than three years), including—
(A) Significant improvement in academic achievement for all of the groups of students described in section 1111(b)(2)(C)(v) of the ESEA;
(B) Success in closing achievement gaps, either within schools or relative to all public elementary school and secondary school students statewide, for all of the groups of students described in section 1111(b)(2)(C)(v)(II) of the ESEA;
(C) High school graduation rates, where applicable, that are above the average rates in the State for the groups of students described in section 1111(b)(2)(C)(v) of the ESEA; and
(D) No significant compliance issues, including in the areas of civil rights, financial management, and student safety;
(2) A restart model must enroll, within the grades it serves, any former student who wishes to attend the school.
(c)
(d)
(1)
(A)
(i) Replace the principal who led the school prior to commencement of the transformation model;
(ii) Implement rigorous, transparent, and equitable evaluation and support systems for teachers and principals, designed and developed with teacher and principal involvement, that—
(
(
(
(
(
(
(iii) Use the teacher and principal evaluation and support system described in section I.A.2(d)(1)(A)(ii) of these requirements to identify and reward school leaders, teachers, and other staff who, in implementing this model, have increased student achievement and high school graduation rates and identify and remove those who, after ample opportunities have been provided for them to improve their professional practice, have not done so; and
(iv) Implement such strategies as financial incentives, increased opportunities for promotion and career growth, and more flexible work conditions that are designed to recruit, place, and retain staff with the skills necessary to meet the needs of students in the school, taking into consideration the results from the teacher and principal evaluation and support system described in section I.A.2(d)(1)(A)(ii) of these requirements, if applicable.
(B)
(i) Providing additional compensation to attract and retain staff with the skills necessary to meet the needs of the students in a transformation school;
(ii) Instituting a system for measuring changes in instructional practices resulting from professional development; or
(iii) Ensuring that the school is not required to accept a teacher without the mutual consent of the teacher and principal, regardless of the teacher's seniority.
(2)
(A)
(i) Use data to identify and implement an instructional program that is research-based and vertically aligned from one grade to the next as well as aligned with State academic standards;
(ii) Promote the continuous use of student data (such as from formative, interim, and summative assessments) to inform and differentiate instruction in order to meet the academic needs of individual students; and
(iii) Provide staff ongoing, high-quality, job-embedded professional development (
(B)
(i) Conducting periodic reviews to ensure that the instruction is implemented with fidelity to the selected curriculum, is having the intended impact on student achievement, and is modified if ineffective;
(ii) Implementing a schoolwide “response-to-intervention” model;
(iii) Providing additional supports and professional development to teachers and principals in order to implement effective strategies to support students with disabilities in the least restrictive environment and to ensure that English learners acquire language skills to master academic content;
(iv) Using and integrating technology-based supports and interventions as part of the instructional program; and
(v) In secondary schools—
(
(
(
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(3)
(A)
(i) Establish schedules and strategies that provide increased learning time (as defined in these requirements); and
(ii) Provide ongoing mechanisms for family and community engagement.
(B)
(i) Partnering with parents and parent organizations, faith- and community-based organizations, health clinics, other State or local agencies, and others to create safe school environments that meet students' social, emotional, and health needs;
(ii) Extending or restructuring the school day so as to add time for such strategies as advisory periods that build relationships between students, faculty, and other school staff;
(iii) Implementing approaches to improve school climate and discipline, such as implementing a system of positive behavioral supports or taking steps to eliminate bullying and student harassment; or
(iv) Expanding the school program to offer full-day kindergarten or pre-kindergarten.
(4)
(A)
(i) Give the school sufficient operational flexibility (such as staffing, calendars/time, and budgeting) to implement fully each element of the transformation model to substantially improve student achievement outcomes and increase high school graduation rates; and
(ii) Ensure that the school receives ongoing, intensive technical assistance and related support from the LEA, the SEA, or a designated external lead partner organization (such as a school turnaround organization or an EMO).
(B)
(i) Allowing the school to be run under a new governance arrangement, such as a turnaround division within the LEA or SEA; or
(ii) Implementing a per-pupil, school-based budget formula that is weighted based on student needs.
(e)
(1) Is supported by evidence of effectiveness, which must include at least one study of the model that—
(A) Meets What Works Clearinghouse evidence standards with or without reservations;
(B) Found a statistically significant favorable impact on a student academic achievement or attainment outcome, with no statistically significant and overriding unfavorable impacts on that outcome for relevant populations in the study or in other studies of the intervention reviewed by and reported on by the What Works Clearinghouse; and
(C) If meeting What Works Clearinghouse evidence standards with reservations, includes a large sample and a multi-site sample as defined in 34 CFR 77.1 (Note: multiple studies can cumulatively meet the large and multi-site sample requirements so long as each study meets the other requirements in this section);
(2) Is a whole-school reform model as defined in these requirements; and
(3) Is implemented by the LEA in partnership with a whole-school reform model developer as defined in these requirements.
(f)
(1) Implement each of the following early learning strategies—
(A) Offer full-day kindergarten;
(B) Establish or expand a high-quality preschool program (as defined in these requirements);
(2) Provide educators, including preschool teachers, with time for joint planning across grades to facilitate effective teaching and learning and positive teacher-student interactions;
(3) Replace the principal who led the school prior to commencement of the early learning model;
(4) Implement rigorous, transparent, and equitable evaluation and support systems for teachers and principals, designed and developed with teacher and principal involvement, that meet the requirements described in section I.A.2(d)(1)(A)(ii);
(5) Use the teacher and principal evaluation and support system described in section I.A.2(d)(1)(A)(ii) of these requirements to identify and reward school leaders, teachers, and other staff who, in implementing this model, have increased student achievement and identify and remove those who, after ample opportunities have been provided for them to improve their professional practice, have not done so;
(6) Implement such strategies as financial incentives, increased opportunities for promotion and career growth, and more flexible work conditions that are designed to recruit, place, and retain staff with the skills necessary to meet the needs of students in the school, taking into consideration the results from the teacher and principal evaluation and support system described in section I.A.2(d)(1)(A)(ii) of these requirements, if applicable;
(7) Use data to identify and implement an instructional program that—
(A) Is research-based, developmentally appropriate, and vertically aligned from one grade to the next as well as aligned with State early learning and development standards and State academic standards; and
(B) In the early grades, promotes the full range of academic content across domains of development, including math and science, language and literacy, socio-emotional skills, self-regulation, and executive functions;
(8) Promote the continuous use of student data (such as from formative, interim, and summative assessments) to inform and differentiate instruction in order to meet the educational and developmental needs of individual students; and
(9) Provide staff ongoing, high-quality, job-embedded professional development such as coaching and mentoring (
(g)
3.
(a) High staff qualifications, including a teacher with a bachelor's degree in early childhood education or a bachelor's degree in any field with a State-approved alternate pathway, which may include coursework, clinical practice, and evidence of knowledge of content and pedagogy relating to early childhood, and teaching assistants with appropriate credentials;
(b) High-quality professional development for all staff;
(c) A child-to-instructional staff ratio of no more than 10 to 1;
(d) A class size of no more than 20 with, at a minimum, one teacher with high staff qualifications as outlined in paragraph (a) of this definition;
(e) A full-day program;
(f) Inclusion of children with disabilities to ensure access to and full participation in all opportunities;
(g) Developmentally appropriate, culturally and linguistically responsive instruction and evidence-based curricula, and learning environments that are aligned with the State early learning and development standards, for at least the year prior to kindergarten entry;
(h) Individualized accommodations and supports so that all children can access and participate fully in learning activities;
(i) Instructional staff salaries that are comparable to the salaries of local K–12 instructional staff;
(j) Program evaluation to ensure continuous improvement;
(k) On-site or accessible comprehensive services for children and community partnerships that promote families' access to services that support their children's learning and development; and
(l) Evidence-based health and safety standards.
(a) Instruction in one or more core academic subjects, including English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography;
(b) Instruction in other subjects and enrichment activities that contribute to a well-rounded education, including, for example, physical education, service learning, and experiential and work-based learning opportunities that are provided by partnering, as appropriate, with other organizations; and
(c) Teachers to collaborate, plan, and engage in professional development within and across grades and subjects.
(a)(1) Any title I school in improvement, corrective action, or restructuring that—
(A) Is among the lowest-achieving five percent of title I schools in improvement, corrective action, or restructuring or the lowest-achieving five title I schools in improvement, corrective action, or restructuring in the State, whichever number of schools is greater; or
(B) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years; and
(2) Any secondary school that is eligible for, but does not receive, title I funds that—
(A) Is among the lowest-achieving five percent of secondary schools or the lowest-achieving five secondary schools in the State that are eligible for, but do not receive, title I funds, whichever number of schools is greater; or
(B) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years.
(b) To identify the lowest-achieving schools, a State must take into account both—
(1) The academic achievement of the “all students” group in a school in terms of proficiency on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and
(2) The school's lack of progress on those assessments over a number of years for the “all students” group.
(a) For grades and subjects in which assessments are required under section 1111(b)(3) of the ESEA, a student's score on such assessments and may include other measures of student learning, such as those described in paragraph (b) of this definition, provided they are rigorous and comparable across schools within an LEA.
(b) For grades and subjects in which assessments are not required under section 1111(b)(3) of the ESEA, alternative measures of student learning and performance, such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; student learning objectives; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools within an LEA.
(a) Improve student academic achievement or attainment;
(b) Be implemented for all students in a school; and
(c) Address, at a minimum and in a comprehensive and coordinated manner, each of the following:
(1) School leadership.
(2) Teaching and learning in at least one full academic content area (including professional learning for educators).
(3) Student non-academic support.
(4) Family and community engagement.
(a) Maintains proprietary rights for the model; or
(b) If no entity or individual maintains proprietary rights for the model, has a demonstrated record of success in implementing a whole-school reform model (as defined in these requirements) and is selected through a rigorous review process that includes a determination that the entity or individual is likely to produce strong results for the school.
4.
(a) In determining the strength of an LEA's commitment to ensuring that School Improvement Grants funds are used to provide adequate resources to enable Tier I, Tier II, priority, and focus schools to improve student achievement substantially, an SEA must consider, at a minimum, the extent to which the LEA's application demonstrates that the LEA has taken, or will take, action to—
(1) In selecting the intervention for each eligible school—
(A) Ensure that the selected intervention is designed to meet the specific needs of the school, based on a needs analysis that, among other things, analyzes the needs identified by families and the community; and
(B) Take into consideration family and community input.
(2) Design and implement interventions consistent with these requirements;
(3) Use the School Improvement Grants funds to provide adequate resources and related support to each school it commits to serve in order to implement fully and effectively the selected intervention on the first day of the first school year of full implementation;
(4) Recruit, screen, and select external providers, if applicable, to ensure their quality, and regularly review and hold accountable such providers for their performance;
(5) Align other resources with the selected intervention;
(6) Modify its practices or policies, if necessary, to enable it to implement the selected intervention fully and effectively;
(7) Provide effective oversight and support for implementation of the selected intervention for each school it proposes to serve, such as by creating an LEA turnaround office;
(8) Meaningfully engage families and the community in the implementation of the selected intervention on an ongoing basis;
(9) For an LEA eligible for services under subpart 1 or 2 of part B of title VI of the ESEA that chooses to modify one element of the turnaround or transformation model under section I.B.6 of these requirements, meet the intent and purpose of that element;
(10) For an LEA that applies to implement an evidence-based, whole-school reform model in one or more eligible schools—
(A) Implement a model with evidence of effectiveness that includes a sample population or setting similar to the population or setting of the school to be served; and
(B) Partner with a whole-school reform model developer, as defined in these requirements;
(11) For an LEA that applies to implement the restart model in one or more eligible schools, conduct a rigorous review process, as described in section I.A.2(b), of the charter school operator, CMO, or EMO that it has selected to operate or manage the school or schools;
(12) Sustain the reforms after the funding period ends; and
(13) Implement, to the extent practicable, in accordance with its selected SIG intervention model, one or more evidence-based strategies (as defined in this notice).
(b) The SEA must consider the LEA's capacity to implement the interventions and may approve the LEA to serve only those Tier I, Tier II, priority, and focus schools for which the SEA determines that the LEA can implement fully and effectively one of the interventions.
B.
1. An SEA may award School Improvement Grants funds to an LEA for a Tier I, Tier II, priority, or focus school that has implemented, in whole or in part, an intervention that meets the requirements under section I.A.2(a), 2(b), 2(d), 2(e), 2(f), or 2(g) of these requirements during the school year in which the LEA applies for School Improvement Grants funds or during the two school years prior to the school year in which the LEA applies for School Improvement Grants funds, so that the LEA and school can continue or complete the intervention being implemented in that school.
2. An SEA may seek a waiver from the Secretary of the requirements in section 1116(b) of the ESEA in order to permit a Tier I or Tier II title I participating school implementing an intervention that meets the requirements under section I.A.2(a), 2(b), 2(d), 2(e), 2(f), or 2(g) of these requirements in an LEA that receives a School Improvement Grant to “start over” in the school improvement timeline. Even though a school implementing the waiver would no longer be in improvement, corrective action, or restructuring, it may receive School Improvement Grants funds.
3. An SEA may seek a waiver from the Secretary to enable a Tier I or Tier II title I participating school that is ineligible to operate a title I schoolwide program and is operating a title I targeted assistance program to operate a schoolwide program in order to implement an intervention that meets the requirements under section I.A.2(a), 2(b), 2(d), 2(e), 2(f), or 2(g) of these requirements.
4. An SEA may seek a waiver from the Secretary to extend the period of availability of School Improvement Grants funds so as to make those funds available to the SEA and its LEAs for up to five years.
5. If an SEA does not seek a waiver under section I.B.2, 3, or 4, an LEA may seek a waiver.
6. An LEA eligible for services under subpart 1 or 2 of part B of title VI of the ESEA may modify one element of the turnaround or transformation model so long as the modification meets the intent and purpose of the original element, in accordance with section I.A.4(a)(9) of these requirements.
A.
1. An LEA may apply for a School Improvement Grant if it receives title I, Part A funds and has one or more schools that qualify under the State's definition of a “Tier I,” “Tier II,” “Tier III,” “priority,” or “focus” school.
2. In its application, in addition to other information that the SEA may require, the LEA must—
(a) Identify the schools it commits to serve;
(b) Identify the intervention it will implement in each Tier I, Tier II, priority, and focus school it commits to serve;
(c) Provide evidence of its strong commitment to use School Improvement Grants funds to implement the selected intervention by addressing the factors in section I.A.4(a) of these requirements;
(d) Include a timeline delineating the steps the LEA will take to implement the selected intervention in each school identified in the LEA's application; and
(e) Include a budget indicating how it will allocate School Improvement Grants funds among the schools it commits to serve that is of sufficient size and scope and that:
(1) For each Tier I, Tier II, priority, and focus school the LEA commits to serve, ensures that the LEA can implement one of the interventions identified in sections I.A.2(a)–(b) or sections I.A.2(d)–(g) of these requirements for a minimum of three years and no more than five years; and
(2) For each Tier III school the LEA commits to serve, includes the services it will provide the school, particularly if the school meets additional criteria established by the SEA, for a minimum of three years and no more than five years.
3. An LEA that intends to use the first year of its School Improvement Grants award for planning and other pre-implementation activities for an eligible school must include in its application to the SEA a description of the activities, the timeline for implementing those activities, and a description of how those activities will lead to successful implementation of the selected intervention.
4. The LEA must serve:
(a) In an SEA with an approved ESEA flexibility request, each priority school unless the LEA demonstrates that it lacks sufficient capacity to undertake one of the interventions described in section I.A.2 of these requirements in each priority school, in which case the LEA must indicate the priority schools that it can effectively serve. An LEA may not serve with School Improvement Grants funds awarded under section 1003(g) of the ESEA a priority or focus school in which it does not implement one of the interventions identified in section I.A.2 of these requirements.
(b) In all other SEAs, each Tier I school unless the LEA demonstrates that it lacks sufficient capacity (which may be due, in part, to serving Tier II schools) to undertake one of the interventions described in section I.A.2 of these requirements in each Tier I school, in which case the LEA must indicate the Tier I schools that it can effectively serve. An LEA may not serve with School Improvement Grants funds awarded under section 1003(g) of the ESEA a Tier I or Tier II school in which it does not implement one of the interventions identified in section I.A.2 of these requirements.
5. An LEA that commits to serve schools that do not receive title I, Part A funds must ensure that each such school it serves receives all of the State and local funds it would have received in the absence of the School Improvement Grants funds.
6. An LEA in which one or more Tier I schools are located and that does not apply to serve at least one of these schools may not apply for a grant to serve only Tier III schools.
7. An LEA in which one or more priority schools are located and that does not apply to serve all of these schools may not apply for a grant to serve one or more focus schools.
8. (a) To monitor each Tier I, Tier II, priority, and focus school that receives School Improvement Grants funds, an LEA must—
(1) Establish annual goals for student achievement on the State's assessments in both reading/language arts and mathematics; and
(2) Measure progress on the leading indicators in section III of these requirements.
(b) The LEA must also meet the requirements with respect to adequate yearly progress in section 1111(b)(2) of the ESEA, if applicable.
9. An LEA must hold the charter school operator, CMO, EMO, or other external provider accountable for meeting these requirements, if applicable.
B.
1. (a) To receive a School Improvement Grant, an SEA must submit an application to the Department at such time, and containing such information, as the Secretary shall reasonably require.
(b) In its application to the Department, each SEA may submit one State-determined intervention model for the Secretary's review and approval. To be approved, a State-determined model must be a whole-school reform model as defined in these requirements and, at the SEA's discretion, may also include any other elements or strategies that the SEA determines will help improve student achievement.
2. (a) An SEA must review and approve, consistent with these requirements, an application for a School Improvement Grant that it receives from an LEA.
(b) Before approving an LEA's application, the SEA must ensure that the application meets these requirements, particularly with respect to—
(1) Whether the LEA has agreed to implement one of the interventions identified in section I.A.2 of these requirements in each Tier I and Tier II school or, for an SEA with an approved ESEA flexibility request, each priority and focus school included in its application;
(2) The extent to which the LEA's application demonstrates the LEA's strong commitment to use School Improvement Grants funds to implement the selected intervention by addressing the factors in section I.A.4 of these requirements;
(3) Whether the LEA has the capacity to implement the selected intervention fully and effectively in each school identified in its application; and
(4) Whether the LEA has submitted a budget that includes sufficient funds to implement the selected intervention fully and effectively in each school it identifies in its application.
3. An SEA may, consistent with State law, take over an LEA or specific Tier I, Tier II, priority, or focus schools in order to implement the interventions in these requirements.
4. An SEA may not require an LEA to implement a particular intervention in one or more schools unless the SEA has taken over the LEA or school.
5. To the extent that a school implementing a restart model becomes a charter school LEA, an SEA must hold the charter school LEA accountable, or ensure that the charter school authorizer holds it accountable, for complying with these requirements.
6. An SEA must post on its Web site, within 30 days of awarding School Improvement Grants to LEAs and within 30 days of approving any amendments to LEA applications, all approved LEA applications (including applications to serve Tier I, Tier II, Tier III, priority, and focus schools and approved amendments) as well as a summary of those grants that includes the following information:
(a) Name and National Center for Education Statistics (NCES) identification number of each LEA awarded a grant.
(b) Amount of each LEA's grant.
(c) Name and NCES identification number of each school to be served.
(d) Type of intervention to be implemented in each Tier I, Tier II, priority, and focus school.
7. If an SEA does not have sufficient School Improvement Grants funds to award, for at least three years, a grant to each LEA that submits an approvable application, the SEA must give priority to LEAs to serve Tier I or Tier II schools or, for an SEA with an approved ESEA flexibility request, the SEA must give priority to LEAs to serve priority schools.
8. An SEA must award a School Improvement Grant to an LEA in an amount that is of sufficient size and scope to support the activities required under section 1116 of the ESEA and these requirements. The LEA's total grant may not be less than $50,000 for each school it commits to serve and, for each school in which the LEA commits to fully implement an intervention that meets the requirements under section I.A.2(a), 2(b), 2(d), 2(e), 2(f), or 2(g) of these requirements, may be up to $2,000,000 per year.
9. If an SEA does not have sufficient School Improvement Grants funds to allocate to each LEA with a Tier I or Tier II school or, in an SEA with an approved ESEA flexibility request, to each LEA with a priority or focus school, an amount sufficient to enable the school to implement fully and effectively the specified intervention throughout the period of availability, including any extension afforded through a waiver, the SEA may take into account—
(a) the distribution of Tier I, Tier II, priority, and focus schools among such LEAs in the State to ensure that Tier I and Tier II schools or, in an SEA with an approved ESEA flexibility request, priority and focus schools throughout the State can be served and
(b) the extent to which an LEA applying for a SIG award demonstrates in its application that it will implement one or more evidence-based strategies (as defined in this notice) as part of the SIG intervention model it implements in a school.
10. In identifying Tier I, Tier II, priority, and focus schools in a State for purposes of allocating funds appropriated for School Improvement Grants under section 1003(g) of the ESEA, an SEA must exclude from consideration any school that was previously identified as a Tier I, Tier II, priority, or focus school and in which an LEA is implementing one of the interventions identified in these requirements using funds made available under section 1003(g) of the ESEA.
11. Before submitting its application for a School Improvement Grant to the Department, the SEA must consult with its Committee of Practitioners established under section 1903(b) of the ESEA regarding the rules and policies contained therein and may consult with other stakeholders that have an interest in its application.
C.
1. An SEA must renew the School Improvement Grant for each affected LEA for additional one-year periods, subject to sections II.C.4–C.6 of these requirements, if the LEA demonstrates that its Tier I, Tier II, priority, and focus schools are meeting the annual goals for student achievement established by the LEA consistent with section II.A.8 of these requirements, and that its Tier III schools are meeting the goals established by the LEA and approved by the SEA.
2. An SEA may renew an LEA's School Improvement Grant with respect to a particular school, subject to the requirements in sections II.C.4–C.6, if the SEA determines that, with respect to that school—
(a) The school is making progress toward meeting the annual goals for student achievement established by the LEA consistent with section II.A.8 of these requirements;
(b) The school is making progress on the leading indicators in section III of these requirements;
(c) The LEA is implementing interventions in the school with fidelity to applicable requirements and to the LEA's application; or
(d) The LEA's Tier III school is making progress toward the goals established by the LEA.
3. If an SEA does not renew an LEA's School Improvement Grant with respect to a particular school, the SEA may reallocate those funds to other eligible LEAs, consistent with these requirements.
4. An SEA, prior to renewing the School Improvement Grant of an LEA that received funds for a full year of planning and other pre-implementation activities for a particular school, must review the performance of the LEA in that school during the planning year against the LEA's approved application and determine that the LEA will be able to fully implement its chosen intervention for the school on the first day of the following school year.
5. An SEA may renew an LEA's School Improvement Grant for a particular school, after three years of continuous intervention implementation in that school, after the SEA has determined that such renewal
6. Nothing in these requirements diminishes an SEA's authority to take appropriate enforcement action with respect to an LEA that is not complying with the terms of its grant.
D.
An SEA may reserve from the School Improvement Grants funds it receives under section 1003(g) of the ESEA in any given year no more than five percent for administration, evaluation, and technical assistance expenses. An SEA must describe in its application for a School Improvement Grant how the SEA will use these funds.
A.
To inform and evaluate the effectiveness of the interventions identified in these requirements, the Secretary will collect data on the metrics in the following chart. Accordingly, an SEA must report only the following new data with respect to School Improvement Grants:
1. A list of the LEAs, including their NCES identification numbers, that received a School Improvement Grant under section 1003(g) of the ESEA and the amount of the grant.
2. For each LEA that received a School Improvement Grant, a list of the schools that were served, their NCES identification numbers, and the amount of funds or value of services each school received.
3. For any Tier I, Tier II, priority, or focus school, school-level data on the metrics designated on the following chart as “SIG” (School Improvement Grants):
4. An SEA must report these metrics for the school year prior to implementing the intervention, if the data exist, to serve as a baseline, and for each year thereafter for which the SEA allocates School Improvement Grants funds under section 1003(g) of the ESEA. With respect to a school that is closed, the SEA need report only the identity of the school and the intervention taken—
B.
An LEA that receives a School Improvement Grant must participate in any evaluation of that grant conducted by the Secretary.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action will have an annual effect on the economy of more than $100 million because fiscal year 2014 appropriations for the program, which the Department will award to SEAs in fiscal year 2015, are approximately $506 million. Therefore, this final action is “economically significant” and subject to review by OMB under section 3(f)(1) of Executive Order 12866. Notwithstanding this determination, we have assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action and have determined that the benefits justify the costs.
We have also reviewed this regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final requirements only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action will not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In this regulatory impact analysis we discuss the potential costs and benefits and the regulatory alternatives we considered.
The Department believes that the final requirements will not impose significant costs on SEAs and LEAs that receive SIG funds. State and local costs of implementing the final requirements (including State costs of applying for grants, distributing grant funds to LEAs, ensuring compliance with the proposed requirements, and reporting to the Department; and LEA costs of applying for subgrants and implementing interventions) will be financed through grant funds. We do not believe that the final requirements will impose burden that SEAs or LEAs will need to meet from other sources.
This regulatory action will continue to drive SIG funds to LEAs that have the lowest-achieving schools in amounts sufficient to turn those schools around and significantly increase student achievement. It will also continue to require participating LEAs to adopt the most effective approaches to turning around low-achieving schools. In short, we believe that this action will ensure that limited SIG funds continue to be put to their optimum use—that is, that they are targeted to where they are most needed and used in the most effective manner possible. The benefits, then, will be more effective schools serving children from low-income families and a better education for those children.
As discussed elsewhere, the Department believes that the final requirements are needed to ensure that the SIG program is implemented in a manner that, among other things, is consistent with the programmatic changes made by Congress in the Consolidated Appropriations Act, 2014. One alternative to promulgation of the final requirements would be for the Department to allocate fiscal year 2014 SIG funds without establishing any new requirements governing their use. Under such an alternative, States and LEAs would need to implement the new provisions in the appropriations language without key regulatory support from the Department. For instance, each State would be responsible for ensuring, for its LEAs that seek to use SIG funds to implement an evidence-based, whole-school reform model in an eligible school, that the strategy selected by the LEA constitutes whole-school reform and is supported by at least moderate evidence of effectiveness. We do not believe that States generally possess the capacity or expertise needed to meet this responsibility with the amount of rigor expected by Congress.
Elsewhere in this section under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.
As required by OMB Circular A–4 (available at
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), we have assessed the potential information collections in these proposed regulations that would be subject to review by OMB (School Improvement Grants OMB Control number 1810–0682). In conducting this analysis, the Department examined the extent to which the amended regulations would add information collection requirements for public agencies. Based on this analysis, the Secretary has concluded that these amendments to the School Improvement Grants regulations would not impose additional burden associated with information collection requirements.
Under final requirement section II.B.1(b), each SEA may submit, as part of the required application it submits to the Department to receive SIG funds, one State-determined intervention model for review and approval by the Secretary. These final requirements require an SEA to submit a State-determined intervention model as part of its application, if a State chooses to implement this model.
Under the burden estimates currently approved by OMB, 52 SEAs will complete, review, and post SEA and LEA applications for a total of 46,800 annual burden hours at a cost of $30 per hour, totaling an annual cost of $1,404,000. These final requirements do not change the currently approved annual burden for SEAs.
The final requirements make a number of clarifications to the reporting requirements. First, final requirement section III.A.3 eliminates the metric for “Truants” and replaces it with “Chronic absenteeism rates.” Second, final requirement III.A clarifies the correct source for each of the required metrics and removes references to the SFSF previously approved under OMB data collection 1810–0695. Finally, final requirements in section III.A.3 require an SEA to report, with respect to schools receiving SIG awards, the number of schools implementing models with a modified element pursuant to section I.B.6 and which models are being implemented in those schools.
Under the reporting burden estimates, 52 SEAs will report SEA and LEA requirements for a total of 3,640 annual burden hours at a cost of $30 per hour totaling an annual cost of $109,200. These final requirements add burden to the currently approved annual burden for SEAs.
The final requirements also add to the existing requirements in section I.A.4(a) (Evidence of strongest commitment) information that, under section II.A.2(c), the LEA must include in the LEA application related to an evidence-based, whole-school reform strategy (for those LEAs that propose to implement such a strategy); meaningful family and community engagement; LEA oversight and support of SIG implementation; review of, and accountability for, external provider performance; implementation of an evidence-based strategy or strategies, if practicable; the review process for selecting a charter school operator, CMO, or EMO; and implementation of evidence-based strategies.
Under the burden estimates that are currently approved by OMB, 3,050 LEAs will complete an application for a total of 183,000 annual burden hours at a cost of $25 per hour totaling an annual cost of $4,575,000. These final requirements do not change the approved annual burden for LEAs.
These regulations have been determined to be major for purposes of the Congressional Review Act (CRA) (5 U.S.C. 801,
These final requirements implement language in the Consolidated Appropriations Act, 2014 (Pub L. 113–76), that modifies the SIG program in substantial ways, described below. The Department must award SIG funds to State educational agencies (SEAs) in
You may also access documents of the Department published in the
Federal Transit Administration (FTA), DOT.
Notice.
On December 16, 2014, President Obama signed the Consolidated and Further Continuing Appropriations Act, 2015 (FY 2015 Appropriations) which provided $11.008 billion in new budget authority including a full fiscal year's funding for the Federal Transit Administration's (FTA) programs funded from the General Fund of the Treasury, which funds its administrative expenses as well as its Research, Technical Assistance and Training programs, Capital Investment Grants program, and Grants to the Washington Metropolitan Area Transit Authority. The FY 2015 Appropriations Act follows several continuing resolutions that provided funds for these programs through December 15, 2014.
The Highway and Transportation Funding Act of 2014 extended FTA's contract (budget) authority to carry out its formula assistance programs only through May 31, 2015. The act pro-rated the amount of budget authority available for the period October 1, 2014 through May 31, 2015 based on an anticipated full FY 2015 total of $8.595 billion. As a result, FTA may apportion only 8/12th or $5.722 billion in contract authority at this time. When combined with the full-year funding from the General Funded programs listed above, FTA is apportioning or allocating in this notice a total of $8.136 billion of the $11.008 billion of new budget authority provided in the FY 2015 Appropriations. Congress will have to extend the authorization for public transportation beyond May 31, 2015, before additional contract authority can be provided for the formula assistance programs.
FTA annually publishes one or more notices apportioning funds appropriated by law. This notice apportions and provides information on the FY 2015 funding currently available for FTA assistance programs, provides program guidance and requirements, and information on several program issues important in the current year. This notice also provides information on FTA's discretionary programs and forthcoming program guidance.
For general information about this notice contact Jamie Pfister, Director, Office of Transit Programs, at (202) 366–2053. Please contact the appropriate FTA Regional Office for any specific requests for information or technical assistance. A list of FTA Regional Offices and contact information is available on the FTA Web site under the heading “Regional Offices” at
On October 1, 2012, the Moving Ahead for Progress in the 21st Century Act (MAP–21) (Pub. L. 112–141) authorized the Federal Transit Administration's (FTA) public transportation assistance programs for FYs 2013–2014. A notice announcing changes and implementation instructions in FTA programs in accordance with MAP–21 was published in the
The FY 2015 Appropriations also provides $150 million in new budget authority for FY 2015 for grants to the Washington Metropolitan Area Transportation Authority and $37.5 million for the Research, Technical Assistance and Training Programs. Finally, this notice provides program information, including the status of MAP–21 implementation for many of the grant programs and other regulatory requirements.
The FY 2015 Appropriations Act provides $2.41 billion in new budget authority for FTA's Capital Investment Grants program, Research, Technical Assistance and Training programs, Grants to the Washington Metropolitan Transit Authority and administrative expenses in FY 2015. In addition to $2.12 billion made available to carry out the Capital Investment Grants (CIG) program, the FY 2015 Appropriations Act directs FTA to use $27.98 million in FY 2011 or prior fiscal years' unobligated discretionary bus and bus facilities funds for new bus rapid transit projects recommended in the President's FY 2015 budget submission to Congress provided that such funds are subject to the CIG Program requirements under 49 U.S.C. 5309. This brings the total funding available for CIG to $2.148 billion in FY 2015.
In addition, the Highway and Transportation Funding Act of 2014 provides $5.722 billion in contract authority derived from the Mass Transit Account of the Highway Trust Fund for the period October 1, 2014 through May 31, 2015 to carry out FTA's formula programs in FY 2015. This is in addition to over $7.92 billion in formula and bus funds that remain unobligated from prior fiscal years. FTA will issue another notice apportioning any additional FY 2015 contract authority for formula assistance programs Congress may provide beyond May 31, 2015.
In order to conduct oversight activities in accordance with 49 U.S.C. 5338(i), 0.5 percent is set aside from the amounts available to carry out the Planning Programs (section 5305); the Enhanced Mobility of Seniors and Individuals with Disabilities Formula Program (section 5310); and the Rural Areas Formula Grants Program (section 5311). In addition, 0.75 percent is set aside from amounts made available to carry out the Urbanized Area Formula Grants Programs, and the High Intensity Fixed Guideway State of Good Repair Formula Program (section 5337(c)). Additionally, one percent of the amount made available to carry out the CIG Program (section 5309) as well as one percent of the amount available for Grants to the Washington Metropolitan Area Transit Authority (section 601 of the Passenger Rail Investment and Improvement Act of 2008 (Pub. L. 110–432)) is set aside for FTA oversight activities.
FTA is publishing apportionment tables on its Web site for each program that reflects the full year appropriations less oversight take-downs, as applicable. FTA is continuing to use, as it did in FYs 2013 and 2014, urbanized area and demographic data from the 2010 Census. Tables displaying the funds available to eligible states, tribes, and urbanized areas have been posted on FTA's Web site at
Consistent with past practices, the calculations for sections 5307, 5311, including 5311(j) (“Tribal Transit”), 5329, 5337, and 5339 programs rely on the most-recent transit service data reported to the National Transit Database (NTD), which in this case is the 2013 report year. In some cases where an apportionment is based on the age of the system, the age is calculated as of September 30, 2014, which was the last day before FY 2015 began. Any recipient or beneficiary of either the section 5307 or section 5311 program funds is required to report to the NTD. Additionally, a number of transit operators report to the NTD on a voluntary basis. For the 2013 report year, the NTD includes data from 852 reporters in urbanized areas, 819 of which reported operating transit service. The NTD also includes data from 1,404 providers of rural transit service, which includes 124 Indian Tribes providing transit service.
The tiers of the sections 5303, 5305, 5307 and 5339 formulas that are based on population and population density continue to rely on data published by the 2010 Census, as required by law. Likewise, the tiers of the section 5311 formula that are based on rural population and rural land area are calculated using 2010 Census data.
The formulas for sections 5307, 5311, and 5311(j) include tiers where funding is allocated on the basis of the number of persons living in poverty, and the section 5310 formula allocates funding on the basis of the population of older adults and people with disabilities. The Census Bureau no longer publishes decennial census data on persons living in poverty and persons with disabilities. As a result, FTA uses the data for these populations available via the Census' American Community Survey (ACS).
The FY 2015 apportionments use data on low-income persons, persons with disabilities, and older adults from the 2008–2012 ACS five-year data set, which was published in December 2013. This data set provides the first estimates that are based on the new Urbanized Area boundaries from the 2010 Census. These data represent the most recent five-year ACS estimates that are available as of October 1st for the year being apportioned.
The NTD and census data that FTA used to calculate the apportionments associated with this notice can be found on FTA's Web site:
MAP–21 authorized several discretionary grant programs, such as the Transit-Oriented Development (TOD) Planning Pilot Program, Low or No Emissions Bus and Facilities Program, Tribal Transit Discretionary Program, and Passenger Ferry Program. FTA publishes individual Notices of Funding Availability (NOFAs), which contain specific application and eligibility information, for its discretionary programs announcing the availability of funds. However, in several cases, such as for the Workforce Development Program and the Tribal Transit Discretionary Program, FTA will use proposals received in response to the previously published FY 2014 NOFAs for purposes of allocating both FY 2014 and FY 2015 available funding. NOFAs are posted in Grants.Gov and on FTA's Web site once published in the
The FY 2015 Appropriations provides approximately $37.5 million for Research, Technical Assistance and Training program activities of which $30 million is available to carry out Research, Development, Demonstration, and Development projects under 49 U.S.C. 5312, and $3 million is available for Transit Cooperative Research Program activities under 49 U.S.C. 5313. In addition, $4 million is available for Technical Assistance and Standards Development under 49 U.S.C. 5314 and $500,000 is provided to carry out Human Resource and Training activities under 49 U.S.C. 5322(a) and (b). More information about these programs can be found in Section IV of this notice.
The Capital Investment Grant (CIG) Program (49 U.S.C. 5309), which historically authorizes the New and Small Starts Programs and now includes the Core Capacity Improvement Program, is excluded from the NOFA process because the program has an ongoing project development and review process, and funding is allocated consistent with information already available to FTA. By way of this notice, FTA is publishing the FY 2015 CIG Allocations table (Table 7) to its Web site for approximately $2.12 billion available in new budget authority to carry out the program. These projects were included in the FY 2015
FTA is posting tables of prior year discretionary allocations that remain unobligated as of September 30, 2014 to its FY 2015 Apportionments Web page. These tables can be found here:
A result of the MAP–21 authorization and in addition to regulatory activities, FTA is continuing to update program circulars to reflect MAP–21 changes and provide guidance for new and existing programs. Below is a chart of publication dates or expected publication dates for the program circulars. FTA publishes draft circulars for notice and comment, and takes into consideration all comments received prior to final publication. In the interim and until FTA publishes final program circulars, existing program circulars combined with the interim guidance in the October 16, 2012 apportionment notice can be used to administer the programs. FTA's electronic grant management system and financial systems both have been updated to reflect new programs and new codes provided by MAP–21. If there are additional questions about the major formula programs or grants, please contact your Regional Office or the Headquarters program contacts listed in Section IV of this notice.
On June 2, 2014, FTA and the Federal Highway Administration (FHWA) published a Notice of Proposed Rulemaking (NPRM) on Statewide and Nonmetropolitan Transportation Planning: Metropolitan Transportation programing in the
On October 3, 2013 FTA published an expansive Advanced Notice of Proposed Rulemaking (ANRPM) in the
FTA is also continuing to work with States with rail fixed guideway public transportation systems (rail transit systems) to develop and carry out State Safety Oversight (SSO) Programs consistent with the requirements of MAP–21. On October 1, 2013, FTA announced the initial certification status of each State and is now working with each State to address, among other things, identified gaps in their SSO
FTA's Transportation Electronic Award and Management (TEAM) system was opened in October 2014 for awarding grants with funds appropriated in FY 2014 or a prior fiscal year. However, FTA is planning to transition to the Transit Award Management System (TrAMS) in April, 2015 and to close TEAM for grant making on March 1, 2015.
TrAMS, by design, collects and presents information contained in new grant applications differently than TEAM, which will make it difficult to migrate applications that have not yet been awarded by March 1, 2015 into the new system. FTA has previously provided guidance that grant applications needed to be in submitted status in TEAM as of January 1, 2015 to ensure award could be made by March 1, 2015. FTA will make a concerted effort to award any other pending grant applications in TEAM by March 1, 2015. However, grant applications not awarded in TEAM by March 1 will not be migrated into TrAMS and the recipient will need to re-create their application in TrAMS.
When deployed, TrAMS aims to offer a more efficient, user-friendly, and flexible tool to award and manage grants and cooperative agreements. It seeks to provide more useful information, and will strengthen the integrity and consistency of our grant award and management process.
FTA has created a page on its Web site,
FTA will continue to provide training and technical assistance on using TrAMS. Training will include live, hands-on workshops, where feasible, as well as training videos and guidance and technical assistance documents. More information on upcoming training will be posted at
FTA also will migrate data, information, and attachments about current recipients and their awarded grants (as of March 1, 2015) from TEAM into TrAMS.
In addition, in order to minimize the amount of data and information that needs to be migrated into TrAMS, FTA encourages its grantees to promptly close any awarded grants where funds are fully disbursed or where the grantees no longer plan to implement the projects funded in the grant. FTA grantees will be able to use TrAMS to manage active grants where work on the transit projects identified in the grant is ongoing. (These grants will be migrated from TEAM to TrAMS).
On December 26, 2013 the Office of Management and Budget (OMB) issued the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200. Part 200 replaces the former Uniform Administrative Requirements for Grants (OMB Circular A–102 and Circular A–110 or 2 CFR part 215 or Circular) as well as the Cost Principles (Circulars A–21 or 2 CFR part 220; Circular A–87 or 2 CFR part 225; and A–122, 2 CFR 230). Additionally it replaces Circular A–133 guidance on the Single Annual Audit.
The administrative requirements and cost principles found in 2 CFR part 200 (Uniform Guidance) became effective for new awards and additional funding to existing awards on December 26, 2014. The audit requirements will apply to audits of fiscal years beginning on or after December 26, 2014. For the most part 2 CFR part 200 does not substantially change administrative requirements, cost principles and audit requirements as experienced by FTA grantees.
Except as otherwise provided in 2 CFR part 1201, which was published as an interim final rule in the
FTA is working to update its guidance, FTA Circular 5010.1D, “Grant Management Requirements” to ensure it is consistent with the new Common Rule. As FTA is required to issue revised updated guidance through a notice and comment process, grantees may continue to follow the procedures of FTA Circular 5010.1D. However, where Circular 5010 references specific requirements of 49 CFR 18 or 19, or the old Common Rule, non-Federal entities should follow the guidance in the 2 CFR part 200 and 2 CFR part 1201 for awards or amendments made after December 26, 2014. As the following requirements are incorporated in Circular 5010 by reference, non-Federal recipients are expected to follow these requirements for new awards or amendments made after December 26, 2014:
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The American Recovery and Reinvestment Act (ARRA) (Pub. L. 111–5) appropriated $8.4 billion for three major FTA transit programs. Pursuant to ARRA, FTA had until September 30, 2010 to obligate the $8.4 billion in grants. Additionally, as a matter of law,
MAP–21 amended 49 U.S.C. 5323(i) “Government Share of Costs for Certain Projects” to include a paragraph that allows a grantee to credit towards its local share the costs a private provider incurs when acquiring rolling stock to be used in providing public transportation in the grantee's service area. The credit in this case will be handled in a similar manner as transportation development credits (formerly known as toll revenue credits). In order to take advantage of this credit, the private provider must exclude any amounts received from the federal, state or local government when acquiring the rolling stock. To determine the amount of credit available to a grantee and to track the application of the use of van pool capital acquisition for local share, the grantee that will apply the share to a grant will be required to supply the following information in the TEAM/TrAMS grant: Vehicle Identification Number; cost/value of the van when it joined the program (including capital cost of contracting calculations if applicable); amount of federal, state or local financial assistance used to acquire the van (note that if any federal funds were used to acquire the van—then the required local share will also be deducted); amount used as credit for previous grants; the amount to be used as credit for this grant; and a copy of the Certified Statement to verify the van is being used in grantee's service area. In addition, section 5323(i)(2)(B) allows a vanpool provider to use revenues in excess of its operating costs to acquire rolling stock if the private provider and the grantee enter into an agreement that the private provider will use the rolling stock in the grantee's service area.
Grantees should contact their Regional Office for assistance if they intend to use this provision. FTA will also develop additional guidance and frequently asked questions to assist grantees with using this new match provision.
Recipients are reminded they need to maintain flood insurance for any building located in a special flood hazard area that received Federal financial assistance. Section 102 of the Flood Disaster Protection Act of 1973 (FDPA) prohibits the Federal government from providing funds for acquisition or construction of buildings located in a special flood hazard area (100-year flood zone) unless the owner of the property first has obtained flood insurance. FTA's Master Agreement and annual Certifications and Assurances reference FDPA and recipients agree they will have flood insurance for buildings in a special flood hazard area.
Specifically, Federal agencies may not provide any financial assistance for the acquisition, construction, reconstruction, repair, or improvement of a building unless the recipient has first acquired flood insurance under the National Flood Insurance Act to cover the buildings constructed or repaired with Federal funds. Consistent with the Federal Emergency Management Agency's (FEMA) definition of “building,” FTA has defined “building” in its Emergency Relief program regulation at 49 CFR 602.5, for insurance purposes, as “a structure with two or more outside rigid walls and a fully secured roof, that is affixed to a permanent site. This includes manufactured or modular office trailers that are built on a permanent chassis, transported to a site in one or more sections, and affixed to a permanent foundation.” In addition, where structures are both above and below ground, the flood insurance requirement applies where at least 51 percent of the cash value of the structure, less land value, is above ground.
This flood insurance requirement applies to transit facilities such as maintenance facilities, storage facilities, and above-ground stations/terminals, as well as equipment and fixtures in the facilities. It does not apply to underground subway stations, track, tunnels, ferry docks, or to any transit assets outside of a special flood hazard area.
A covered structure must be insured through the NFIP or a comparable private policy. The policy must provide coverage at least equal to the project cost for which Federal assistance is provided, or to the maximum limit of coverage available under the National Flood Insurance Act (currently $500,000 for buildings and $500,000 for equipment and fixtures), whichever amount is less. Facilities owned by state governments may be self-insured, but only where FEMA has approved the state's self-insurance policy. Private entities, and public entities other than state governments, may not self-insure and must obtain a flood insurance policy before receiving Federal funds and maintain the policy subsequent to grant award.
As part of the Appropriations Act for 2015, Congress enacted section 418 (Section 418 of the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113–235), which prohibits FTA from using FY 2015 funds to implement, administer, or enforce 49 CFR 18.36(c)(2) for construction hiring. Section 18.36(c)(2) prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation of bids or proposals. Effective December 26, 2014, 49 CFR part 18 will apply only to grants obligated on or before December 25, 2014. Grants obligated on or after December 26, 2014 will be subject to 2 CFR part 200. This provision (18.36(c)(2)) is codified at 2 CFR 200.319(b) and is substantively the same as 18.36(c)(2). Although Congress did not address the change in codification in section 418, FTA intends to apply section 418 to grants obligated on or after December 26, 2014 and subject to 2 CFR 200.319(b). Accordingly, grantees may include in-State or local geographic preferences in construction contracts awarded or advertised in FY2015. FTA will provide additional guidance regarding the implementation and applicability of section 418 on its Web site at
In response to the modifications made by section 125 of the Consolidated Appropriations Act, 2014, Public Law 113–76, FHWA in coordination with FTA has clarified what is meant by the
This section of the notice provides the available FY 2015 funding to date and/or other important program-related information for 20 FTA programs that are contained in this notice. Funding for twelve programs is apportioned by statutory or administrative formula. Funding for the other eight programs will be allocated on a discretionary or competitive basis. Available funding and/or other important information for each of the programs is presented immediately below. This includes program apportionments or allocations, certain program requirements, length of time FY 2015 funding is available for obligation and other significant program information pertaining to FY 2015. For the formula programs, the funding represents the $5.722 billion available at this time as authorized by the Highway and Transportation Funding Act of 2014. FTA expects to publish another notice should Congress provide additional contract authority for this fiscal year.
Section 5305(d) authorizes Federal funding to support a cooperative, continuous, and comprehensive planning program for transportation investment decision-making at the metropolitan area level. The specific requirements of metropolitan transportation planning are set forth in 49 U.S.C. 5303 and further explained in 23 CFR part 450, as incorporated by reference in 49 CFR part 613, Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule. FTA apportions funds directly to State Departments of Transportation (DOTs). State DOTs then allocate the funds to Metropolitan Planning Organizations (MPOs), for planning activities that support the economic vitality of the metropolitan area.
MAP–21 requires that the metropolitan transportation planning process must provide for the establishment of a performance-based approach to decision-making. Upon publication of a final rule on the metropolitan transportation planning program, MPOs will be required to establish specific performance targets that address transportation system performance measures (to be issued by U.S. DOT), where applicable, to use in tracking progress towards attaining critical outcomes. These performance targets will be established by MPOs in coordination with States and transit providers. MPOs also will be required to provide a system performance report that evaluates their progress in meeting the performance targets in comparison with the system performance identified in prior reports.
This funding must support work elements and activities resulting in balanced and comprehensive intermodal transportation planning for the movement of people and goods in the metropolitan area. Comprehensive transportation planning is not limited to transit planning or surface transportation planning, but also encompasses the relationships among land use and all transportation modes, without regard to the programmatic source of Federal assistance. Eligible work elements or activities include, but are not limited to, studies relating to management, mobility management, planning, operations, capital requirements, and economic feasibility; evaluation of previously funded projects; peer reviews and exchanges of technical data, information, assistance, and related activities in support of planning and environmental analysis among MPOs and other transportation planners; work elements and related activities preliminary to and in preparation for constructing, acquiring, or improving the operation of facilities and equipment; and development of coordinated public transit human services transportation plans.
During the spring of 2014, the Acting Administrators of FTA and FHWA issued a Planning Emphasis Area letter to the MPO's requesting that they include work activities in their Unified Planning Work Programs (UPWP) to advance the following activities; (1) Transition to Performance Based Planning and Programming. This involves the development and implementation of a performance management approach to transportation planning and programming that supports the achievement of transportation system performance outcomes; (2) Models of Regional Planning—Promote cooperation and coordination across MPO boundaries and across State boundaries where appropriate to ensure a regional approach to transportation planning. This is particularly important where more than one MPO or State serves an urbanized area or adjacent urbanized areas. This cooperation could occur through the metropolitan planning agreements that identify how the planning process and planning products will be coordinated, through the development of joint planning products, and/or by other locally determined means; and (3) Ladders of Opportunity—Access to essential services—USDOT is encouraging state and local decision makers to plan for transportation investments and policies that provide “ladders of opportunity” connecting people safely to jobs, education, and health care and other essential services and improving their quality of life.
An exhaustive list of eligible work activities is provided in FTA Circular 8100.1C,
The FY 2015 Appropriations provides a total of $70,931,607 for the Metropolitan Planning Program (section 5305(d)) to support metropolitan transportation planning activities set forth in section 5303. The total amount apportioned for the Metropolitan Planning Program to States for MPOs' use in urbanized areas (UZAs) is $70,576,949 as shown in the table below, after the deduction for oversight (authorized by section 5338).
Eighty percent of the funds are apportioned to the States based on the most recent decennial Census for each State's UZA population. The remaining 20 percent is provided to the States with UZAs with one million or more in population in order to address planning needs in larger, more complex UZAs.
The State allocates Metropolitan Planning funds to MPOs in UZAs or portions thereof to provide funds for planning projects included in a one or two-year program of planning work activities (the Unified Planning Work Program, or UPWP). The UPWP includes multimodal systems planning activities spanning both highway and transit planning topics. Each State has either reaffirmed or developed, in consultation with their MPOs, an allocation formula among MPOs within the State, based on the 2010 Census. The allocation formula among MPOs in each State may be changed annually, but the FTA Regional Office must approve any change before grant award. Program guidance for the Metropolitan Planning Program is found in FTA Circular 8100.1C,
The Metropolitan Planning program funds apportioned in this notice are available for obligation during FY 2015 plus three additional fiscal years. Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2018. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2018, will revert to FTA for reapportionment under the Metropolitan Planning program.
This program provides financial assistance to States for statewide transportation planning and other technical assistance activities, including supplementing the technical assistance program provided through the Metropolitan Planning program. The specific requirements of Statewide transportation planning are set forth in 49 U.S.C. 5304 and further explained in 23 CFR part 450 as referenced in 49 CFR part 613, Statewide Transportation Planning; Metropolitan Transportation Planning; Final Rule. This funding must support work elements and activities resulting in balanced and comprehensive intermodal transportation planning for the movement of people and goods. Comprehensive transportation planning is not limited to transit planning or surface transportation planning, but also encompasses the relationships among land use and all transportation modes, without regard to the programmatic source of Federal assistance. For more information, contact
FY 2015 Appropriations provides a total of $14,817,434 for the State Planning and Research Program (section 5305(e)). The total amount apportioned for the State Planning and Research Program (SPRP) is $14,743,347 as shown in the table below, after the deduction for oversight (authorized by section 5338).
FTA apportions funds to States by a statutory formula that is based on the most recent decennial Census data available, and the State's UZA population as compared to the UZA population of all States.
Funds are provided to States for statewide transportation planning programs. These funds may be used for a variety of purposes such as planning, technical studies and assistance, demonstrations, and management training. In addition, a State may authorize a portion of these funds to be used to supplement Metropolitan Planning funds allocated by the State to its UZAs, as the State deems appropriate. Program guidance for the State Planning and Research program is found in FTA Circular 8100.1C,
MAP–21 requires that the statewide and non-metropolitan transportation planning process must provide for the establishment and use of a performance-based approach to decision-making. Upon publication of a final rule on the statewide and non-metropolitan transportation planning program, State Departments of Transportation will be required to establish specific performance targets that address transportation system performance measures (to be issued by U.S. DOT), where applicable, to use in tracking progress towards attaining critical outcomes. These performance targets will be established by States in coordination with MPOs and transit providers. States will be encouraged to provide a system performance report that evaluates their progress in meeting the performance targets in comparison with the system performance identified in prior reports.
The State Planning and Research program funds apportioned in this notice are available for obligation during FY 2015 plus three additional fiscal years. Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2018. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2018 will revert to FTA for reapportionment under the State Planning and Research program.
Section 5307 authorizes Federal assistance for capital, planning, job access and reverse commute projects, and, in some cases, operating assistance for public transportation in urbanized areas. An urbanized area (UZA) is an area with a population of 50,000 or more that has been defined and
FTA calculates an apportionment amount for each UZA based on statutory formulas. For UZAs with populations of 200,000 or more, FTA apportions funds directly to one or more designated recipients, which are local or statewide agencies designated by the governor in accordance with sections 5303 and 5304, to receive and allocate section 5307 funds to eligible public transportation projects in the UZA. For UZAs with populations between 50,000 and 200,000, FTA apportions funds directly to the governor for allocation to eligible public transportation projects in those areas of the state. Eligible funding recipients are limited to designated recipients and other local government authorities that a designated recipient or governor authorizes to apply for the funds directly to FTA.
Additional detailed guidance on the Urbanized Area Formula Program is available in FTA Circular 9030.1E,
The circular contains guidance on several provisions that were established by MAP–21 and took effect beginning in FY 2013. These include a new provision allowing operating assistance for transit agencies in UZAs over 200,000 in population that operate a maximum of 100 buses in fixed route service during peak service hours, the eligibility of job access and reverse commute projects under section 5307, changes to the definition of “capital project,” expanded eligibility for sources of local match, and the replacement of the “transit enhancements” requirements with a similar “associated transit improvements” requirement. For more information about the Urbanized Area Formula Program contact
FY 2015 Appropriations provides a total of $2,968,361,507 for the Urbanized Area Formula Program (section 5307). The total amount apportioned to UZAs is $3,211,537,790, which includes the addition of amounts apportioned to UZAs pursuant to the section 5340 Growing States and High Density States Formula factors. This amount excludes the set-aside for the Passenger Ferry Discretionary Program, apportionments under the State Safety Oversight Program, and funding for oversight (authorized by section 5338), as shown in the table below.
FTA apportions Urbanized Area Formula Program funds based on statutory formulas. Congress established four separate formulas that are used to apportion portions of the available funding: The section 5307 Urbanized Area Formula Program formula, the Small Transit Intensive Cities (STIC) formula, the Growing States and High Density States formula, and a formula based on low-income population. Additional information on these formulas is provided in the following subsections.
Consistent with prior apportionment notices, Table 3 shows a total section 5307 apportionment for each UZA, which includes amounts apportioned under each of these formulas. Detailed information about the formulas is provided in Table 4. For technical assistance purposes, the UZAs that receive STIC funds are listed in Table 6. FTA will provide breakouts of the funding allocated to each UZA under these formulas upon request; such requests should be directed to your FTA Regional Office.
For UZAs between 50,000 and 199,999 in population, the section 5307 formula is based on population and population density. For UZAs with populations of 200,000 and more, the formula is based on a combination of bus revenue vehicle miles, bus passenger miles, bus operating costs, fixed guideway vehicle revenue miles, and fixed guideway route miles, as well as population and population density. The Urbanized Area Formula is defined in 49 U.S.C. 5336.
To calculate a UZA's FY 2015 apportionment, FTA used population and population density statistics from the 2010 Census and validated mileage and transit service data from transit providers' 2013 National Transit Database (NTD) Report Year (when applicable). Consistent with section 5336(b), FTA has included in the urbanized area formula 22.27 percent of the fixed guideway directional route miles and vehicle revenue miles from eligible transit systems that were ordinarily attributable to rural areas.
FTA has calculated dollar unit values for the formula factors used in the Urbanized Area Formula Program apportionment calculations. These values represent the amount of money each unit of a factor is worth in this year's apportionment. The unit values change each year, based on all of the data used to calculate the apportionments, as well as the amount appropriated by Congress. The dollar unit values for FY 2015 are displayed in Table 5. To replicate the basic formula component of a UZA's apportionment, multiply the dollar unit value by the appropriate formula factor (
Under the STIC formula, FTA apportions funds to UZAs under 200,000 in population that have public transportation service that operates at a level equal to or above the industry average for all UZAs with a population of at least 200,000, but not more than 999,999. STIC funds are apportioned on the basis of six performance categories: Passenger miles traveled per vehicle revenue mile, passenger miles traveled per vehicle revenue hour, vehicle revenue miles per capita, vehicle revenue hours per capita, passenger miles traveled per capita, and passengers per capita. A UZA is granted a “STIC share” for each performance category in which its data exceeds the average of all UZAs between 200,000 and 1 million in population. The total dollar amount available for apportionment in the STIC formula is then divided evenly among each of the STIC shares.
The data used to determine a UZA's eligibility under the STIC formula and to calculate the STIC apportionments was obtained from the NTD reports for the 2013 reporting year. Because performance data change with each year's NTD reports, the UZAs eligible for STIC funds and the amount each receives may vary each year. UZAs that received funding through the STIC
FTA also apportions funds to qualifying UZAs and States according to the section 5340 Growing States and High Density States formula. Half of the funds appropriated for section 5340 are apportioned to Growing States and half to High Density States. More information on this program and its formula is found in Section IV.S. of this notice.
Beginning in FY 2013, the formula for this program has included a formula factor for low-income population. Of the amount authorized and appropriated for the Urbanized Area Formula Program in each year, 3.07 percent is apportioned on the basis of low income population.
Program guidance for the Urbanized Area Formula Program is found in FTA Circular
Section 5307 funds are available for a period of six years (year of apportionment plus five additional years). Accordingly, 5307 funds apportioned in FY 2015 must be obligated in grants by September 30, 2020. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2020 will revert to FTA for reapportionment under the Urbanized Area Formula Program. Grantees are encouraged to obligate funds when projects are ready and not wait until the last year the funds are available.
Consistent with the definition of “designated recipient,” FTA apportions funds according to the formula under section 5336 to designated recipients in UZAs of 200,000 or more in populations (large UZAs) and to the Governor of the State for UZAs of less than 200,000 in population (small UZAs). Pursuant to section 5336(e), the Governor of the State may allocate apportionments among the small UZAs. FTA interprets the legislation to allow a Governor to do so regardless of whether a small UZA has been designated as a TMA. FTA can make grants under this program to direct recipients after sub-allocation of funds.
As mentioned above, under MAP–21 there is a 0.5 percent take-down from the Section 5307 Urbanized Area program that has been made available to states for State Safety Oversight (SSO) program activities as authorized under 49 U.S.C. 5329. More information about this program funding is in Section IV of this notice.
Recipients of sections 5307 funds may use up to 0.5 percent of those funds to cover up to 80 percent of the cost of participation by an employee who has direct safety oversight responsibility for the public transportation system. Likewise, participation by SSOA personnel with direct safety oversight responsibilities will be an eligible expense for section 5329(e)(6)(A) funds.
Section 5335 requires that each recipient or beneficiary under the Section 5307 program submit an annual report to the NTD containing information on financial, operating, and asset condition information. An annual NTD report should be a full report of all transit activities, regardless of funding source. For the 2014 Report Year, the reporting requirements apply to any recipient of a Section 5307 grant obligated in 2013, any recipient of a Section 5307 grant with outlays in 2014, or any entity that continued to benefit in 2014 from capital assets purchased using Section 5307 grants. Also, recipients or subrecipients that benefitted from Section 5307 grants in prior years, and which anticipate benefitting from Section 5307 grants in future years, should also continue to report to the NTD. Recipients or beneficiaries of Section 5307 grants that do not operate transit service, either directly or through a contract for purchased transportation services, are still required to report to the NTD on capital and planning expenditures, but have significantly reduced reporting requirements. Recipients or beneficiaries of Section 5307 grants that operate 30 or fewer vehicles in maximum service across all transit modes are also eligible for reduced, “Small Systems” reporting requirements. Recipients or beneficiaries making full annual reports to the NTD are also subject to monthly reporting requirements on service operations and safety incidents. MAP–21 also established new requirements for reporting asset inventories and condition assessments to FTA at section 5326(b)(3), 5335(a), and 5335(c). FTA previously proposed guidance for implementing these requirements in the
The Passenger Ferry Grant Program (Ferry program) is an authorized discretionary program funded from the Section 5307 Urbanized Area Formula Grants program and offers public ferry systems in urbanized areas financial assistance for capital projects. For more information about the Ferry Program, contact
The FY 2015 Appropriations provides a total of $19,972,603 in section 5307 Urbanized Area Formula grant funding to be set-aside for the Ferry program.
Funds are allocated by a discretionary competition and published in a Notice of Funding Availability (NOFA) in the
Eligible recipients are designated recipients or eligible direct recipients of Section 5307 funds engaged in providing a public transportation passenger ferry service. Ferry systems that accommodate cars must also accommodate walk-on passengers. Funding may be used to support existing ferry service, establish new ferry service, repair and modernize ferry boats, terminals, and related facilities and equipment. Funds may not be used for operating expenses, planning, or preventive maintenance.
The Federal match for this program is 80 percent, 85 percent for net project
Passenger Ferry funds follow the same period of availability as section 5307, and are available for a period of six years (year of apportionment plus five additional years). Accordingly, funds allocated in FY 2015 must be obligated in grants by September 30, 2020. Any of the funds allocated in FY 2015 that remain unobligated at the close of business on September 30, 2020 will revert to FTA for reallocation under the Ferry program. Grantees are encouraged to obligate funds when projects are ready and not wait until the last year the funds are available.
The Ferry program grantees, the same as with all other FTA grantees, are required to comply with all applicable Federal statutes and regulations as a condition of their financial assistance. This includes all third party procurement guidance as described in FTA.C.4220.1F.
The Fixed Guideway Capital Investment Grant (CIG) Program provides funds for construction of new corridor-based bus rapid transit and fixed guideway systems or extensions to existing systems and, as amended by MAP 21, projects that will expand the core capacity of an existing fixed guideway corridor. Eligible projects are new fixed-guideway systems, such as rapid rail (heavy rail), commuter rail, light rail, hybrid rail, trolleybus (using overhead catenary), cable car, passenger ferries, and bus rapid transit, or an extension of any of these. The Small Starts program also includes corridor-based bus rapid transit projects where the majority of the alignments do not operate on a separate fixed guideway but include features that emulate the services provided by rail fixed guideway including defined stations, traffic signal priority for public transit vehicles, and short headway bi-directional services for a substantial part of weekdays and weekend days. The addition of Core Capacity eligibility under the program provides funds for substantial, corridor-based investments in existing fixed guideway systems that are at capacity today or will be in five years. Core Capacity Improvement projects must increase the capacity of the existing fixed guideway system in the corridor by at least 10 percent. Projects become candidates for funding under this program by successfully completing steps in the process defined in section 5309 and obtaining a satisfactory rating under the statutorily-defined criteria. For New Starts and Core Capacity Improvement projects, the steps in the process include project development, engineering, and construction. For Small Starts projects the steps in the process include project development and construction. New Starts and Core Capacity Improvement projects receive construction funds from the program through a full funding grant agreement (FFGA) that defines the scope of the project and specifies the total multi-year Federal commitment to the project. Small Starts projects receive construction funds through a single year grant or a Small Starts Grant Agreement (SSGA) that defines the scope of the project and specifies the Federal commitment to the project.
For more information about the New or Small Starts or Core Capacity project development process or evaluation and rating process contact
The FY 2015 Appropriations provides a total of $2,120,000,000 in new budget authority for the section 5309 program. Pursuant to FY 2015 appropriations, in addition to funds appropriated to carry out the CIG program, $27.98 million in FY 2011 and prior year unobligated or recovered section 5309 (Discretionary Bus and Bus Facilities) funds are available to carry out bus rapid transit (BRT) projects subject to the requirements of the CIG program. The total amount available for allocation is $2,098,800,000, after the one percent deduction for oversight, as shown in the table below.
Funds are allocated on a discretionary basis and subject to program evaluation. Within the amounts appropriated by the 2015 Appropriations Act, the Act directed FTA to first fully fund those projects covered by a full funding grant agreement, then fully fund those projects whose section 5309 share is less than 40 percent, and then distribute the remaining funds so as to protect as much as possible the projects' budgets and schedules. It is not, however, a requirement for projects to have a New Starts share of less than 40 percent to be eligible for federal funding under the CIG program or to receive an allocation. Rather, as section 165 of the FY 2015 Appropriations Act states, the section 5309 Federal share for New Starts and Core Capacity projects may be up to
In January 2013, FTA published a final rule explaining the MAP–21 evaluation and rating process for New and Small Starts projects, which became effective in April 2013. Additionally, FTA published corresponding final policy guidance in August 2013 that provides additional details and explanations on that process. FTA will be completing additional rulemaking and guidance documents related to the remainder of the section 5309 MAP–21 provisions, including: Getting into and through the steps in the New Starts and Small Starts process; the evaluation and rating process for the Core Capacity Improvement program; getting into and through the steps in the Core Capacity process; warrants; expedited technical capacity reviews; and Programs of Inter-Related Projects. Project sponsors should reference the FTA Web site at
MAP–21 expanded the period of availability for section 5309 capital investment funds to five years, (the fiscal year in which the amount is made
The Enhanced Mobility of Seniors and Individuals with Disabilities Program provides formula funding to States and Designated Recipients of large UZAs (areas with populations of 200,000 or more) to improve mobility by expanding transportation options for seniors and individuals with disabilities. This program provides funds for: (1) Public transportation capital projects planned, designed, and carried out to meet the special needs of seniors and people with disabilities when public transportation is insufficient, unavailable, or inappropriate; (2) public transportation projects that exceed the requirements of the Americans with Disabilities Act (ADA) of 1990; (3) public transportation projects that improve access to fixed route service and decrease reliance by people with disabilities on complementary paratransit; and (4) alternatives to public transportation that assist seniors and individuals with disabilities with transportation. A critical component of meeting these goals is the development and approval of projects by key community stakeholders, including seniors and individuals with disabilities, of a locally developed coordinated plan.
FTA apportions funds specifically for large UZAs, small UZAs (areas under 200,000 in population) and rural areas (areas under 50,000 in population) and requires new designations in large UZAs. Additionally, MAP–21 expanded the eligibility provisions to include operating expenses. Other provisions include the requirement that at least 55% of funds be used for traditional capital projects; up to 10% can be used for administrative expenses; and the remainder can be used for nontraditional projects. MAP–21 also reinforces the utility of interventions like mobility management which is eligible as a capital expense for both traditional and nontraditional projects.
On June 6, 2014, FTA published the final program circular, FTA C 9070.1G,
For more information about the Enhanced Mobility of Seniors and Individuals with Disabilities Program, contact
FY 2015 Appropriations provides a total of $171,964,110 for the section 5310 program. The total amount apportioned to States and UZAs for the section 5310 program is $171,104,289, after the deduction for oversight (authorized by section 5338), as shown below in the table.
Based on the statutory formula, sixty percent of the funds are apportioned among Designated Recipients for large UZAs; twenty percent of the funds are apportioned among the States for their small UZAs; and twenty percent of the funds are apportioned among the States for their rural areas.
Recipients and subrecipients should refer to the program circular, FTA C 9070.1G,
For small UZAs and rural areas, the State is the Designated Recipient for section 5310. Current 5310 designations remain in effect until changed by the Governor of a State by officially notifying the appropriate FTA regional administrator of re-designation.
In large UZAs, the recipient charged with administering the section 5310 program must be officially designated through a process consistent with sections 5303 and 5304 prior to grant award. The MPO, State, or another public agency may be a preferred choice based on local circumstances. The designation of a recipient shall be made by the Governor in consultation with responsible local officials and publicly owned operators of public transportation, as required in sections 5303 and 5304. Section 5310 funds cannot be awarded until this designation is on file with the FTA Regional Office. A State agency may be the Designated Recipient for section 5310 funds for a large UZA; this arrangement still requires a designation letter to administer the program under MAP–21. However, if the State is selected as the Designated Recipient in a large UZA, the apportioned funds for the large UZA must be allocated to eligible subrecipients within the UZA.
Designated Recipients are responsible for administering the program. Responsibilities include: Notifying eligible local entities of funding availability; developing project selection processes; determining project eligibility; developing the program of projects; obligating and managing the program funds; program reporting; and ensuring that all subrecipients comply with Federal requirements.
Although FTA will only award grants to the States for the small urbanized and rural areas and Designated Recipients for the large urbanized areas under this program, there are other entities eligible to receive funding as a subrecipient. These include private nonprofit agencies, public bodies approved by the state to coordinate services for elderly persons and persons with disabilities, or public bodies which certify to the Governor that no nonprofit corporations or associations are readily available in an area to provide the service.
MAP–21 expanded eligibility of the funds, permitting them to be used for operating, in addition to capital, for transportation services that address the needs of seniors and individuals with disabilities. However, not less than 55 percent of the funds available for this program must be used for capital projects planned, designed, and carried out to meet the special needs of seniors and individuals with disabilities when public transportation is insufficient, inappropriate, or unavailable. FTA refers to these projects as “traditional 5310” projects and based on the statutory language, these projects must be carried out by the traditional 5310 subrecipients, which are non-profits, or
States and Designated Recipients may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. No local share is required for these program administrative funds.
The States and Designated Recipients must certify that: Projects selected for funding under this program are included in a locally developed, coordinated public transit-human services transportation plan; and the plan was
Additional guidance for developing coordinated plans can be found in Chapter V of the FTA C 9070.1G,
FTA requires States and Designated Recipients responsible for implementing the section 5310 program to document their approach to managing the program in a Program Management Plan (PMP) or State Management Plan (SMP). States and Designated Recipient are required to submit SMPs and PMPs to the Regional Office prior to grant award for review and approval. Approval of these plans must be on file before the award of a section 5310 grant in FY 2015. For assistance with developing these plans, recipients can use Chapter VII of the FTA C 9070.1G,
For Enhanced Mobility of Seniors and Individuals with Disabilities Program funds apportioned under this notice, the period of availability is three years (year of apportionment plus two additional years). Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2017. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2017 will revert to FTA for reapportionment among the States and UZAs.
FTA recently developed frequently asked questions (FAQs) that are posted to its Web site. These questions are meant to assist recipients and stakeholders with the continued implementation of the program. Please visit:
MAP–21 required FTA to report to Congress on candidate performance measures for the Section 5310 program. FTA initially sought comments on this topic during publication of the proposed program circular, and then sought additional comments through an Online Dialogue in 2014. This report will be provided to Congress and then made available in 2015. Grantees under the Section 5310 must still continue to report annually on the existing performance measures for this program, in accordance with FTA's responsibilities under the Government Performance and Results Act. The following are the current quantitative and qualitative performance measures: (1) Gaps in Service Filled. Provision of transportation options that would not otherwise be available for seniors and individuals with disabilities measured in numbers of seniors and people with disabilities afforded mobility they would not have without program support as a result of traditional Section 5310 projects implemented in the current reporting year. (2) Ridership. Actual or estimated number of rides (as measured by one-way trips) provided annually for individuals with disabilities and seniors on Section 5310-supported vehicles and services as a result of traditional Section 5310 projects implemented in the current reporting year. (3) Increases or enhancements related to geographic coverage, service quality, and/or service times that impact availability of transportation services for seniors and individuals with disabilities as a result of other Section 5310 projects implemented in the current reporting year. (4) Additions or changes to physical infrastructure (
The Rural Areas program provides formula funding to States and Indian tribes for the purpose of supporting public transportation in areas with a population of less than 50,000 (rural areas). Funding may be used for capital, operating, planning, job access and reverse commute projects, and State
On October 24, 2014, FTA published final guidance for the program in FTA Circular 9040.1G,
For more information about the Formula Grants for Rural Areas program, contact
The FY 2015 Appropriations provides $404,644,932 for the section 5311 program. The total amount apportioned to the States for the section 5311 program is $411,107,459, after the deductions for the Rural Transportation Assistance Program (RTAP), oversight (authorized by section 5338), the Tribal Transit Program, the Appalachian Development Public Transportation Assistance Program, and the addition of section 5340 for Growing States, as shown in the table below.
The section 5311 funds are apportioned pursuant to a statutory formula. The majority of rural formula funds (83.15 percent) are apportioned based on land area and population factors. In this first tier, no State may receive more than 5 percent of the amount apportioned on the basis of land area. The remaining rural formula funds (16.85 percent) are apportioned based on land area, vehicle revenue miles, and low-income individual factors. Vehicle revenue miles are a new service factor and the low-income individual factor reflects that job access and reverse commute projects are now eligible under the program. In this second tier, no State may receive more than 5 percent of the amount apportioned on the basis of land area, or more than 5 percent of the amounts apportioned for vehicle revenue miles. In addition to funds made available under section 5311, FTA adds amounts apportioned based on rural population according to the growing States formula factors of 49 U.S.C. 5340 to the amounts apportioned to the States under the section 5311 formula.
Data from the Rural Module of the National Transit Database (NTD) 2013 Report Year was used for this apportionment, including data from directly-reporting Indian tribes.
Other than the .5 percent takedown for oversight, the section 5311 program includes three takedowns: The Appalachian Development Public Transportation Assistance Program (ADTAP); the Rural Transit Assistance Program (RTAP); and the Tribal Transit Program. These separate programs are described in the sections that follow.
The section 5311 program provides funding for capital, operating, planning, job access and reverse commute projects, and administration expenses for public transit service in rural areas. The planning activities undertaken with section 5311 funds are in addition to those awarded to the State under section 5305 and must be used specifically for rural areas' needs. States may elect to use 10 percent of their apportionment at 100 percent federal share to administer the section 5311 program and provide technical assistance to subrecipients. Technical assistance includes project planning, program and management development, public transportation coordination activities, and research the State considers appropriate to promote effective delivery of public transportation to rural areas.
Each State prepares an annual program of projects, which must provide for fair and equitable distribution of funds within the States, including Indian reservations, and must provide for maximum feasible coordination with transportation services assisted by other Federal sources.
Additional program guidance for the Rural Areas Program is found in FTA Circular 9040.1G,
For section 5311 program funds apportioned under this notice, the period of availability is three years (year of apportionment plus two additional years). Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2017. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2017 will revert to FTA for reapportionment under the Formula Grants to Rural Areas Program.
Section 5335 requires that each recipient or beneficiary under the section 5311 program submit an annual report to the NTD containing information on capital investments, operations, and service. Section 5311(b)(4) specifies that the report shall include information on total annual revenue, sources of revenue, total annual operating costs, total annual capital costs, fleet size and type, and related facilities, revenue vehicle miles, and ridership. Annual NTD reports should be a complete report of all transit activities, regardless of funding source. State or Territorial DOT 5311 grant recipients must complete a one-page form of basic data for each 5311 sub-recipient, unless the sub-recipient is already providing a full report to the NTD, either as a Tribal Transit direct recipient, or as a subrecipient of another State, or as an UZA reporter (without receiving a full reporting waiver). For the 2014 Report Year, State or Territorial DOTs must report on behalf of any sub-recipient included in the program of projects for a grant that was open in 2014, that received outlays of section 5311 grant funds in 2014, or that continued to benefit in 2014 from capital assets purchased using section 5311 grants. State or Territorial DOTs should also continue to report on behalf of any sub-recipients that benefitted from section 5311 grants in prior years, and which anticipate benefitting from section 5311 grants in future years. For Tribal Transit direct recipients that have not previously reported to the NTD, your organization is required to report to the NTD if one of the following apply:
This program provides funding to assist in the design and implementation of training and technical assistance projects, research, and other support services tailored to meet the needs of transit operators in rural areas. For more information about the Rural Transportation Assistance Program (RTAP) contact
The FY 2015 Appropriations provides $8,092,899 for the section 5311 RTAP Program. Of this amount, 15 percent, or $1,213,935 is available for the National RTAP program. The remainder is allocated to the States, as shown below.
FTA allocates funds to the States by an administrative formula. First, FTA allocates $65,000 to each State ($10,000 to territories), and then allocates the balance based on rural population in the 2010 Census.
States may use the funds to undertake research, training, technical assistance, and other support services to meet the needs of transit operators in rural areas. These funds are to be used in conjunction with a State's administration of the Rural Areas Formula Program, but also may support the rural components of the section 5310 program.
The section 5311 RTAP funds apportioned in this notice are available for obligation in FY 2015 plus two additional years, consistent with that established for the section 5311 program. Any funds that remain unobligated on September 30, 2017 will revert to FTA for apportionment under the program.
The National RTAP project is administered by cooperative agreement and re-competed at five-year intervals. In July of 2014, FTA awarded a cooperative agreement to Neponset Valley Transportation Management Association to administer the National RTAP program. The National RTAP projects are guided by a project review board that consists of managers of rural transit systems and State DOT RTAP programs. National RTAP resources also support the biennial TRB National Conference on Rural Public and Intercity Bus Transportation and other research and technical assistance projects of a national scope to promote effective delivery of public transportation in rural areas.
MAP–21 established this program as a take-down under the section 5311 program to provide additional funding to support public transportation in the Appalachian region. There are sixteen eligible States that receive an allocation under this provision. The States and their allocation are shown in the Rural Areas Formula program table posted on FTA's Web site under the FY 2015 Apportionments page. For more information about the Appalachian Development Public Transportation Assistance Program (ADTAP), contact
The FY 2015 Appropriations provides $13,315,068 for the ADTAP, as shown below.
FTA apportions the funds using percentages established under section 9.5(b) of the Appalachian Regional Commission Code (subtitle IV of title 40). According to this provision, allocations will be based in general on each State's remaining estimated need to complete eligible sections of the Appalachian Development Highway System as determined from the latest percentages of available cost estimates for completion of the System. Such cost estimates shall be produced at approximate five year intervals. Allocations shall contain upper and lower limits in amounts to be determined by the Commission and shall be made in accordance with legislation.
Funds apportioned under this program can be used for purposes consistent with section 5311 to support public transportation in the Appalachian region. Funds can be applied for in the State's annual section 5311 grant.
MAP–21 includes a provision that permits the use of Appalachian program funds that cannot be used for operating to be used for a highway project under certain circumstances. States should contact their Regional Office if they intend to request a transfer. Additional information about the requirements for this funding can be found in Chapter VII of the FTA Circular 9040.1G,
Section 5311 Appalachian program funds are available for three years (year of apportionment plus two additional years), consistent with that established for the section 5311 program. Funds that remain unobligated on September 30, 2017 will revert to FTA for reallocation.
The Public Transportation on Indian Reservations Program (Tribal Transit Program) is a takedown from the section 5311 apportionment, which allocates funds by both statutory formula consistent with 5311(j) and through a competitive discretionary program consistent with section 5311(c)(1)(A). The Tribal Transit formula funds are apportioned to Indian tribes for any purpose eligible under section 5311, which includes capital, operating, planning, job access and reverse commute projects, and administrative assistance for rural public transit
On December, 9, 2014, FTA published a Notice of Funding Availability (NOFA) soliciting proposals for the FY 2014 discretionary resources. FTA intends to use this solicitation and proposals received in response to this NOFA to allocate FY 2015 discretionary resources. Applications are due February 18, 2015. Specific eligibility for the discretionary resources is outlined in the NOFA.
For more information about the Tribal Transit Program contact
The FY 2015 Appropriations provides $19,972,603 for the program, of which $14,972,603 is apportioned by formula and $5,000,000 will be allocated through a competitive discretionary program.
The majority of the funding is allocated by formula, as described below. The remainder of the appropriation plus prior year discretionary funds that have lapsed, will be made available through a discretionary competition.
The Tribal Transit formula program is distributed to eligible Indian tribes providing public transportation on tribal lands. The formula apportionment shown in Table 10 is based on a statutory formula which includes three tiers. Tiers 1 and 2 are based on data reported to NTD by Indian tribes; Tier 3 is based on 2008–2012 American Community Survey data.
The three tiers for the formula are:
Tribes should continue to report vehicle revenue miles to the NTD for inclusion in future TTP formula apportionments.
The Tribal Transit Discretionary program funds are allocated annually based on a discretionary competition and as published in a NOFA in the
Formula funds apportioned under this program can be used for purposes consistent with section 5311 to support public transportation on Indian Reservations in rural areas. Funds allocated under the discretionary program must be used consistent with the tribe's proposal and the allocation notice published in the
Section 5335 requires NTD reporting for all direct recipients of section 5311 funds. This reporting requirement has and continues to apply to the Tribal Transit Program. Tribes that provide public transportation in rural areas are reminded to report annually so they are included in the Tribal Transit formula apportionments. Tribes needing assistance with reporting to the NTD should contact the NTD Helpline at 1–888–252–0936 or
Tribal Transit program funds are available for three years (year of apportionment or allocation plus two additional years), consistent with that established for the section 5311 program. Any FY 2015 formula funds that remain unobligated at the close of business on September 30, 2017 will revert to FTA for reapportionment under the Tribal Transit Program.
The funds set aside for the Tribal Transit Program are not meant to replace or reduce funds that Indian tribes receive from States through the section 5311 program but are to be used to enhance public transportation on Indian reservations and transit serving tribal communities. Funds allocated to Indian tribes by the States may be included in the State's section 5311 application or awarded by FTA in a grant directly to the Indian tribe. FTA encourages Indian tribes intending to apply to FTA as direct recipients to contact the appropriate FTA Regional Office at the earliest opportunity.
Tribal Transit Program grantees, the same as with all other FTA grantees, are obliged to comply with applicable Federal requirements as a condition of their financial assistance. To assist tribes with understanding these requirements and the recent program changes, FTA conducted five Tribal Transit Technical Assistance Workshops in FY 2013 and FY 2014. FTA will continue similar offerings in FY 2015; workshops are tentatively planned for Santa Fe, Sacramento, and Denver. In addition, FTA will begin reviews to assess technical assistance needs and provide specific technical assistance for tribes beginning in March 2015; these reviews will include an assessment of capabilities related to compliance areas pursuant to the Master Agreement, a site visit and technical assistance from FTA and its contractors. FTA will post information about upcoming workshops to its Web site and will disseminate information about the reviews through the Regional Offices. FTA has regional tribal transit liaisons in each of the FTA Regional Offices that are available to assist tribes with applying for and managing FTA grants. A list of regional tribal transit liaisons can be found on FTA's Web site at
Technical assistance for Indian tribes may also be available from the State DOT using the State's allocation of RTAP or funds available for State administration under section 5311, from the Tribal Transportation Assistance Program (TTAP) Centers supported by FHWA, and from the Community Transportation Association of America under a program funded by the United States Department of Agriculture (USDA). National RTAP will also be developing new resources for Tribal
MAP–21 amended the section 5312: Research; Innovation and Development; and, Demonstration, Deployment and Evaluation to include a Low or No Emission Vehicle Deployment program to fund low or no emission vehicles, facilities, or related equipment in non-attainment or maintenance areas. Additionally, MAP–21 established a structured process for applications, evaluations, and reporting for the research programs. For more information contact
The FY 2015 Appropriations provides a total of $30,000,000 for section 5312. Of this amount, $22,500,000 is allocated for the Low or No Emissions Vehicle Deployment Program.
Topical areas are based on the Department's Strategic Goals and projects are generally selected through Notices of Funding Availability (NOFAs).
Application Instructions and Program Management Guidelines are set forth in FTA Circular 6100.1D,
Except for the Low or No Emission Vehicle Deployment Program, FTA establishes the period in which the funds must be obligated to the project. If the funds are not obligated within that period of time, they revert to FTA for reallocation under the program. Low or No Emission Vehicle Deployment funds are available for two years in addition to the year the funds are made available to a recipient, for a total of three years.
Requests for research proposals will be published in Grants.gov. Awards for Low and No Emission Vehicle Deployment competition with previous fiscal year funds will be announced on February 5, 2015.
The Transit Cooperative Research Program (TCRP) funds a variety of applied research efforts for practitioners in the transit industry. TCRP is the cooperative effort of three organizations: The FTA; the National Academies, acting through the Transportation Research Board (TRB); and the Transit Development Corporation, Inc. (TDC), a nonprofit educational and research organization established by the American Public Transportation Association (APTA).
The FY 2015 Appropriations provides a total of $3,000,000 for this section.
TCRP issues annual calls for problem statements. For more information and past reports see
Funds are allocated directly to the Transportation Research Board at the National Academies of Sciences. For application requirements for this program, please see
The Transportation Research Board establishes the period in which funds must be obligated to a project.
This section allows FTA to provide technical assistance to recipients to more effectively and efficiently provide transit service and to improve administration of Federal transit funds. It also authorizes the development of voluntary and consensus-based standards and best practices. Additionally, through a competitive process, FTA may enter into agreements with national nonprofit organizations to assist providers of public transportation to: Comply with the Americans with Disabilities Act (ADA); comply with human services transportation coordination requirements and enhance Federal coordination; to meet the transportation needs of elderly individuals; to increase transit ridership in coordination with MPOs and other entities through development around public transportation stations; to address transportation equity needs; and to provide any other technical assistance activities deemed necessary by FTA. For more information contact
The FY 2015 Appropriations provides a total of $4,000,000 for this section.
FTA will allocate funds based on identified technical assistance and standards needs for the transit industry and generally selected through a competitive process.
Application Instructions and Program Management Guidelines are set forth in FTA Circular 6100.1D,
FTA establishes the period in which funds must be obligated to a project. If the funds are not obligated within that period of time, they revert back to FTA for reallocation under the program.
Requests for proposals will be published in Grants.gov.
FTA may make grants or enter into contracts for human resource needs
A national transit institute is authorized under section 5322(d). The institute is authorized to develop training and education programs related to topics in public transportation. For more information contact
The FY 2015 Appropriations provides $500,000 for this section to carry out human resource activities under section 5322(a), (b) and (e). There is $3,328,767 is available for a national transit institute authorized under section 5322(d).
On September 5, 2014, FTA published a Notice of Funding Availability (NOFA) soliciting proposals for Ladders of Opportunity: Public Transportation Workforce Development Projects. FTA intends to use that solicitation and proposals received in response to that NOFA to allocate FY 2015 discretionary resources. Applications were due November 17, 2014. Specific eligibility for the discretionary resources was outlined in the NOFA. FTA will allocate funds based on identified workforce development and training needs, as well as by an innovative workforce development competition or through a standard award process.
Application Instructions and Program Management Guidelines are set forth in FTA Circular 6100.1D,
FTA establishes the period in which funds must be obligated to a project. If the funds are not obligated within that period of time, they revert back to FTA for reallocation under the program.
Requests for proposals will be published in Grants.gov.
FTA's Emergency Relief (ER) Program is authorized to provide funding for public transportation expenses incurred as a result of an emergency or major disaster. No funding was provided in the FY 2015 Appropriations Act for this program. Eligible expenses include emergency operating expenses, such as evacuations, rescue operations, and expenses incurred to protect assets in advance of a disaster, as well as capital projects to protect, repair, reconstruct, or replace equipment and facilities of a public transportation system in the United States or on an Indian reservation that the Secretary determines is in danger of suffering serious damage or has suffered serious damage as a result of an emergency. While Congress did not provide funding for this program in FY 2015, in the event of a declared emergency or major disaster recipients may use funds apportioned under sections 5307 and 5311 for emergency purposes. However, recipients are advised that formula funds used for emergency purposes will not be replaced or restored in the event that funding is subsequently made available through FTA under the ER Program or by FEMA.
In response to Hurricane Sandy, the Disaster Relief Appropriations Act of 2013 made $10.9 billion available (which was subsequently reduced to $10.2 billion by sequestration and intergovernmental transfers of funds to other bureaus and offices within DOT) for the Emergency Relief program for public transportation systems only in the affected areas. These funds cannot be used for other disasters. FTA has announced and allocated funding for affected transit agencies within the declared disaster area through a series of
In order for an agency to be eligible for Emergency Relief funding, the agency must have been affected by an emergency as defined under section 5324. Section 5324(a)(2) defines an emergency as “a natural disaster affecting a wide area (such as a flood, hurricane, tidal wave, earthquake, severe storm) or a catastrophic failure from any external cause as a result of which (a) the Governor of a State has declared an emergency and the Secretary has concurred or (b) the President has declared a major disaster under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act.” Expenses incurred due to incidents that do not rise to the level of a Governor's declaration with concurrence by the Secretary of Transportation will not be eligible to be funded under section 5324. Further, in the event of a Presidential declaration of emergency, FTA may reimburse only those expenses that are not reimbursed under the Stafford Act. If funding is available under the Emergency Relief program for a public transportation system affected by an emergency, agencies are directed to seek emergency relief from FTA rather than FEMA.
If a recipient has been affected by an emergency or major disaster, the recipient should contact the appropriate FTA Regional Office as soon as practicable to determine whether Emergency Relief funds are available, and to notify it that it plans to seek reimbursement for emergency operations and/or repairs that have already taken place or are in process. If Emergency Relief funds are unavailable the recipient may seek reimbursement from FEMA. Properly documented costs for which the grantee has not received reimbursement from FEMA may later be reimbursed by grants made either from section 5324 funding (if appropriated) or section 5307 and 5311 program funding, once the eligible recipient formally applies to FTA for reimbursement and FTA determines that the expenses are eligible for emergency relief.
On October 7, 2014, FTA published final program regulations for the Emergency Relief Program at 49 CFR part 602. This final rule replaces the interim final rule published on March 29, 2013. This final rule establishes and clarifies the procedures and eligibility requirements for entities seeking or receiving funding under this program. FTA solicited and responded to public comments in the development of these regulations.
FTA anticipates publishing for notice and comment a program guidance manual for the ER Program in early 2015. This guidance manual will contain additional information on the procedures, eligibility requirements, and recommended practices for entities that have been or may be affected by an emergency or disaster, including those
Additional information about the Emergency Relief program and FTA's response to Hurricane Sandy is available on the FTA Web site at
For more information on the ER Program or FTA's response to Hurricane Sandy, contact Adam Schildge, Office of Program Management, at 202–366–0778 or
MAP–21 establishes a Public Transportation Safety Program (section 5329) authorizing FTA to establish and enforce a new comprehensive framework to oversee the safety of public transportation throughout the United States. Section 5329(e)(6) of 49 U.S.C. provides funding to support States with rail fixed guideway public transportation systems (rail transit systems) to develop and carry out State Safety Oversight (SSO) Programs consistent with the requirements of MAP–21. For more information about the State Safety Oversight Formula Grant Program,
Under MAP–21, there is a 0.5 percent take-down from the section 5307 Urbanized Area Formula grant program that provides the funding to be apportioned to States for SSO program activities. For the partial FY 2015 year apportionment, the amount available for the SSO program is $14,841,808.
FTA apportions SSO grant program funds to eligible States using a three-tier formula based on statutory requirements:
(a) Tier 1, the Service Tier, apportions sixty percent (60%) of available funds based on the vehicle passenger miles (PMT), vehicle revenue miles (VRM), and directional route miles (DRM) reported by the rail fixed guideway public transportation systems in each State. The Service Tier also includes a cap so that no State can receive more than 15% of the funding available for each of the above service measures (
(b) Tier 2, the Base Tier, apportions twenty percent (20%) of available funds equally to each eligible State, to ensure a minimum funding level for each State, regardless of the level of service provided by the rail transit agencies overseen in the program.
(c) FTA apportions the remaining twenty percent (20%) through Tier 3, the Modal Tier, which takes into account the number of separate rail transit systems (
Eligible recipients include any eligible State or entity designated by the eligible State(s) with the legal capacity to perform all of the following responsibilities: (a) Receive and dispense Federal funds for the purposes of the State Safety Oversight Program (SSOP); (b) submit grant applications to FTA; and (c) enter into formal grant agreements with FTA.
FTA requires each applicant to demonstrate in its grant application that its proposed grant activities will develop, lead to, or carry out an enhanced SSOP that meets the requirements under 49 U.S.C. 5329(e). Grant funds may be used for program operational and administrative expenses, including employee training activities.
Grant funds under this program used for activities related to oversight of rail transit systems within an SSOA's jurisdiction must meet the definition of a rail fixed guideway public transportation system, including those rail transit systems in operation, in the engineering or construction phase of development, and those in a planning or other earlier phase occurring prior to the engineering or construction phase as long as that rail transit system meets all applicable Federal requirements. FTA maintains a list of these systems based on documentation provided by States in annual reports and other submittals to FTA. Eligible States should contact FTA as soon as they become aware of a new rail transit system in planning, engineering, construction, or operations in their jurisdictions.
Eligible States must detail how they will use SSO Formula Grant Funds in certification work plans and SSO grant applications. SSO formula grant funds may only be used to support activities that meet existing 49 CFR part 659 requirements if those activities also meet 49 U.S.C. 5329(e). FTA has provided FAQs to further clarify eligible activities:
FTA is in the process of implementing the National Public Transportation Safety Program under 49 U.S.C. 5329, and a rulemaking on the SSO Program, among other things, is expected under 49 U.S.C. 5329(e). If FTA subsequently establishes criteria or conditions for grants made under the SSO Formula Grant Program that are different from those in this notice, the different criteria or conditions will not be applied retroactively to applications submitted or grants awarded consistent with this notice, unless the change benefits the applicant.
As stated in the FTA's March 14, 2014
States that were certified may be awarded grants to cover the costs associated with implementing or carrying out their SSO programs. States that were not certified, but received FTA approval to submit grant applications, may be awarded grants to support initial development and implementation of enhanced SSOPs.
To confirm States use their grant funds to enhance their SSOPs in ways that address MAP–21 requirements, FTA intends for States to use FTA's October 1, 2013 certification correspondence and the supporting teleconference calls to develop work plans to supplement their applications to FTA's new SSO Formula Grant Program.
States that are not certified are required to provide these work plans as part of the grant application process. An eligible State's work plan must be submitted and approved prior to submission of the State's grant application. States that are certified are encouraged, but not required, to submit work plans that will further enhance their SSOPs.
These work plans should demonstrate a clear and workable transition to meet MAP–21 statutory requirements. They should identify gaps or deficiencies in their respective State's authorizing safety legislation relative to MAP–21 statutory requirements, articulate a clear end result to achieve compliance, and identify eligible activities with reasonable timeframes to accomplish these goals. FTA will provide States with a work plan template, as well as supporting materials for addressing some of the more common gaps in meeting MAP–21 provisions. These materials are available on the FTA Web site at:
States are not required to use these materials and may use a format of their choice when developing their work plan.
FTA will work with grantees to identify meaningful milestones to apply grant funding. FTA will review each plan to assess compliance with MAP–21 statutory requirements and the reasonableness of the activities and timeframes proposed. FTA must accept each State's work plan before the State may submit its grant application and the funds can be awarded. FTA will work closely with each eligible State to determine conformance with these eligibility criteria and to develop these transition or remedial work plans to address any non-compliance with these criteria.
FTA will conduct quarterly teleconference calls and quarterly and annual reporting to monitor the progress of eligible States in meeting MAP–21 statutory requirements.
The SSO Formula Grant Program specified in 49 U.S.C. 5329(e)(6) is intended to support administrative and operating costs for State safety oversight of rail transit systems. Therefore, the following costs are ineligible:
(a) Project costs that cover rail transit system expenses;
(b) Project costs for State activities unrelated to the SSOP;
(c) Project costs that directly support the operation or maintenance of a rail transit system;
(d) Project costs for which the recipient has received funding from another Federal agency; and
(e) Other project costs that FTA determines are not appropriate for the SSOP.
To find standards for determining eligible and ineligible expenses, see 2 CFR part 200.
To receive the funds apportioned through this formula, each eligible State must be or become an FTA grantee. Eligible States should follow these steps to begin the grant application process:
(a) Identify FTA grant recipient: Each Governor will need to identify the State agency that will be the FTA grant recipient for these program funds by sending a letter to the appropriate FTA Regional Administrator. A listing of FTA Regional Offices and full contact information is available at
(b) Coordinate with the FTA Regional Office: The identified grant recipient should work with the FTA Regional Office to determine what additional activities or information are required with respect to the new SSO Formula Grant Program. If the identified grant recipient is not an existing FTA grant recipient, it must work with the appropriate FTA Regional Office to be established as a new FTA recipient. The FTA Regional Office will identify the specific activities necessary to become established as a FTA recipient.
(c) Identify sufficient and allowable matching funds: Eligible States are required to provide a twenty percent (20%) match for FTA-funded SSOP activities.
Section 5329(e)(6)(B)(ii) requires that grant funds apportioned to eligible States must be subject to uniform administrative requirements for grants and cooperative agreements to State and local governments under part 18 of title 49, Code of Federal Regulations, for grants awarded prior to December 26, 2014 and 2 CFR part 200 and 2 CFR part 1201 for grants awarded on or after December 26, 2014 and as well as amendments to grants after that date. Among these requirements, the following terms and conditions apply:
(a) Work Plan Submission Requirements. States that have not yet been certified as part of FTA's October 1, 2013 initial certification determination must submit a work plan. The work plan must identify and address gaps and deficiencies in the State's SSOP to meet 49 U.S.C. 5329(e) requirements.
(b) 49 CFR part 659. Until three years after a final rule issued by FTA, 49 U.S.C. 5330 and its implementing regulations at 49 CFR part 659 will stay effective. In order to receive FTA funding for its SSOP, recipients in compliance with 49 CFR part 659 as of October 1, 2013, must, at a minimum, maintain compliance until these provisions are repealed. However, as stated above, SSO Formula Grant Program funds may not be used to support activities that meet 49 CFR part 659 requirements unless those activities also meet 49 U.S.C. 5329(e) requirements.
(c) Local Share. FTA's formula provides a Federal share covering up to eighty percent (80%) of the eligible project costs of an SSOP grant developed or carried out under MAP–21. Eligible States must provide at least a twenty percent (20%) local share. The twenty percent (20%) local share may not include other Federal funds, any funds received by the State from a rail transit agency, or any revenues earned by a rail transit agency. Section 5329(e)(4)(A)(i) requires each SSOA to be financially and legally independent from any public transportation entity it oversees. States that currently rely entirely upon fees, assessments, or funding from rail transit systems in their jurisdiction to fund SSO activities are unable to use those funds for any SSO Formula Grant Program activities and will need to address this issue of financial and legal independence as part of their work plan. FTA will work with these States on an individual basis, to the extent necessary, to identify permissible local share sources. States overseeing multi-state operations may include funds collected from partner States as part of their local share as long as those funds are not otherwise prohibited under this Grant Program. As part of the grant application, States need to include the source of the local match. In addition, for those States overseeing multi-state operations must show evidence of agreement regarding how the local share will be met among the States.
SSO Formula Grant Program funds are available for three years (year of apportionment plus two additional years). Any FY 2015 funds that remain unobligated at the close of business on September 30, 2017 will revert to FTA for reapportionment under the SSO Formula Grant Program.
Grantees may be reimbursed for eligible activities incurred as of the date of publication of this notice, provided the grantee has been certified or upon approval of a certification work plan. A grant marked for pre-award authority cannot be executed unless the Initial Federal Financial Report (FFR) has been completed in TEAM-Web. Please see the
FTA procurement and contracting requirements apply to projects funded by the SSO Formula Grant Program. For additional information, please see the latest version of FTA Circular 4220.1, “Third Party Contracting Guidance.” (
FTA Circular 5010, “Grants Management Guidelines” (
Each Applicant for (and later Recipient of) SSO grant funds must sign and submit the required Certifications and Assurances and submit updated Certifications and Assurances annually thereafter. Submissions may be made electronically through TEAM-Web (or its successor, TrAMS). The latest Certifications and Assurances can be found on FTA's Web site at
Projects funded by the SSO Formula Grant Program may, but are not required to, be included in the Statewide Transportation Improvement Program (STIP) or a Metropolitan Transportation Improvement Plan (TIP). Inclusion of such projects in the STIP or TIP is not a prerequisite in order to be reimbursed by FTA.
Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for determining the eligibility of specific types of expenses. Grantees should exercise care when incurring costs to confirm all expenditures meet the criteria of eligible costs. Failure to comply with these requirements may result in expenditures for which use of project funds cannot be authorized. For further information on allowable costs and FTA financial grant management expectations, please refer to the most current version of FTA Circular 5010, “Grants Management Guidelines” Chapter VI, “Financial Management.” The document can be found at the following web address:
The State of Good Repair (SGR) Grant program provides capital assistance for maintenance, rehabilitation, and replacement projects of existing fixed guideway and high intensity motorbus systems to maintain a state of good repair. FTA estimates that a backlog of $86 billion of transit assets need to be replaced or repaired and that number continues to grow. Additionally, SGR grants are eligible for developing and implementing Transit Asset Management plans. This program provides funding for the following transit modes: Rapid rail (heavy rail), commuter rail, light rail, hybrid rail, monorail, automated guideway, trolleybus (using overhead catenary), aerial tramway, cable car, inclined plane (funicular), passenger ferries, bus rapid transit, and fixed-route bus services operating on high-occupancy-vehicle (HOV) facilities.
MAP–21 replaces and modifies elements of the fixed guideway modernization program (section 5309) with this program. Projects, including new maintenance facilities or maintenance equipment, that solely expand capacity or service are not eligible projects. However, FTA will permit expansion of capacity within replacement projects to meet current or projected short-term service needs (
FTA published the State of Good Repair program guidance, FTA Circular 5300.1,
For more information about the SGR program, contact
The FY 2015 Appropriations provides a total of $1,441,955,342 for the SGR program. After a 0.75 percent oversight takedown from the amount apportioned to the fixed guideway tier, the total amount allocated for the SGR program is $1,431,448,895, as shown in the table below.
Table 11 shows the FY 2015 SGR Program formula apportionments to eligible UZAs.
FTA allocates SGR program funds according to a statutory formula. Funds are apportioned to UZAs with fixed guideway and high intensity motorbus systems that have been in operation for at least seven years. This means that only segments of fixed guideway and high intensity motorbus systems that entered into revenue service on or before September 30, 2007 are included in the formula, as identified in the NTD.
The law requires that 97.15 percent of the total amount authorized for the SGR program be apportioned to UZAs with “high intensity fixed guideway” systems. The apportionments to UZAs with “high intensity fixed guideway” systems are determined by two equal elements: (1) The proportion a recipient would have received of the fiscal year 2011 apportionment for 49 U.S.C. 5337, as it then existed, if calculated using the current version of 49 U.S.C. 5336(b)(1) and the current definition of “fixed guideway” at 49 U.S.C. 5337(a); (2) the proportion of vehicle revenue miles of an UZA to the total vehicle revenue miles of all UZAs and the proportion of directional route miles of an UZA to the total directional route miles of all UZAs. High Intensity Motorbus systems will receive the remaining 2.85 percent of the total amount authorized for the SGR program, and the apportionments to UZAs are based on vehicle revenue miles and directional route miles. Apportionment changes resulting from the exclusion of vehicle revenue and directional miles reported from bus service provided other than on High Occupancy Vehicle (HOV) lanes will take effect in FY 2016.
Vehicle revenue miles and directional route miles that are attributable to an UZA must be placed in revenue service at least 7 years before the first day of the fiscal year. FTA will apportion section 5337 funds to the section 5307 Designated Recipient for the UZA with fixed guideway transportation systems operating at least 7 years. The Designated Recipients will then allocate funds as appropriate to recipients that are public entities in the UZA and provide split letters to the FTA. FTA can make grants to direct recipients after sub-allocation of funds.
In addition to the program guidance found in the circular, all recipients will need to certify that they will comply with the forthcoming rule issued under section 5326 for the Transit Asset Management plan, and SGR projects will need to be included in recipients' Transit Asset Management plans. This requirement is subject to FTA rulemaking and will become effective only after the rule is issued.
While funds are apportioned based only on fixed guideway and high intensity motorbus segments that have been in operation seven years or longer, a recipient may use the funds apportioned to it for eligible maintenance, replacement, and rehabilitation projects on any part of its existing fixed guideway system. Eligible capital projects are those necessary to maintain fixed guideway systems in a state of good repair, including projects to replace and rehabilitate:
i. Rolling stock;
ii. Track;
iii. Line equipment and structures;
iv. Signals and communications;
v. Power equipment and substations;
vi. Passenger stations and terminals;
vii. Security equipment and systems;
viii. Maintenance facilities and equipment;
ix. Operational support equipment, including computer hardware and software;
x. Development and implementation of a transit asset management plan; and
xi. Other replacement and rehabilitation projects FTA determines appropriate.
Allowable activities within eligible replacement projects include the replacement of older features with new ones. Allowable activities within eligible rehabilitation projects include the incorporation of current design standards and additional features required by Federal law. Equipment, vehicles, and facilities to be replaced must have reached or exceeded its minimum useful life to be eligible for SGR funds.
In addition to replacement and rehabilitation, new maintenance facilities or maintenance equipment are eligible if needed to maintain the existing fixed guideway system or equipment in a state of good repair. Also, preventive maintenance activities are eligible.
FTA will permit expansion of capacity within eligible replacement projects to meet current or projected short-term service needs (
The SGR funds apportioned in this notice are available for obligation during FY 2015 plus three additional years. Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2018. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2018 will revert to FTA for reapportionment under the SGR Program.
Projects that maintain and rehabilitate capital assets used for bus service other than on High Occupancy Vehicle (HOV) lanes, such as High Occupancy Toll (HOT) lanes, are not eligible for high intensity motorbus funds. High intensity motorbus funds may be used for public transportation service provided on HOV lanes during peak hours. Apportionment changes resulting from the exclusion of bus service other than on HOV will take effect in FY 2016.
MAP–21 established the Bus and Bus Facilities Formula program, replacing some of the elements of the former Bus and Bus Facilities discretionary program under SAFETEA–LU. The program provides funding to replace, rehabilitate, and purchase buses and related equipment as well as construct bus-related facilities.
Eligible recipients are designated recipients and States that operate or allocate funding to fixed-route bus operators. Eligible subrecipients include public agencies or private nonprofit organizations engaged in public transportation, including those providing services open to a segment of the general public, as defined by age, disability, or low income. While the statute limits eligible recipients to fixed route bus operators or those entities that allocate funding to fixed route bus operators, eligible projects are not restricted to fixed route bus capital projects.
FTA is in the process of finalizing the program circular (FTA Circular 5100.1), which was published for notice and comment in July 2014. In the meantime, recipients should review the sections below for interim program guidance combined with the previously published interim guidance contained in the FY 2013 Apportionment Notice, dated October 16, 2012. For more information about the Bus and Bus Facilities program,
The FY 2015 Appropriations provides a total of $284,809,315 for the Bus and Bus Facilities program. After the take-down for the States and Territories (National Distribution), $241,202,466 is available to be apportioned to the UZAs, as shown below.
Funds are apportioned according to a statutory formula. However, State and Territories (including the District of Columbia and Puerto Rico) receive a fixed allocation before FTA applies the formula. This fixed allocation, referred to as the National Distribution allocation, provides each State $832,192 and each territory $332,877. These funds are available for use anywhere in the State or Territory. The remainder of the funding is apportioned for UZAs based on population, vehicle revenue miles and passenger miles and is specifically for use in UZAs.
For large UZAs, the Designated Recipient(s) work with interested parties, including the MPO, to allocate amounts among eligible subrecipients. The Designated Recipient in consultation with interested parties should determine the subarea allocation fairly and rationally through a process based on local needs.
Pursuant to section 5339(c)(2), except for the funds set aside for distribution to each state, funds available to carry out section 5339 are apportioned consistent with the formula set forth in section 5336 other than subsection (b). Pursuant to section 5336(e), the Governor exercises the authority to allocate section 5339 formula apportionments to all small UZAs within the State—including those that lie within the planning areas of MPOs serving TMAs. Federal law clearly states that it is up to the State to determine the distribution method for section 5339 funds among small UZAs, and inclusion of small UZAs within the planning area of an MPO that serves a transportation management area (TMA) does not change the status of those small UZAs. They are still small UZAs and subject to the Governor's allocation. There is no legal prohibition to the Governor allocating the apportioned funds through competition. Regardless of how the State decides to allocate the section 5339 bus funds, the MPO, the State, and the transportation operators are reminded that, with exceptions not relevant in this case, projects not included in a federally-approved Statewide Transportation Improvement Program (STIP) will not be eligible to receive those program funds. (See 23 CFR 450.330(d)).
Eligible capital projects include projects to replace, rehabilitate, and purchase buses and related equipment, and projects to construct bus-related facilities. This includes the acquisition of buses for fleet and service expansion, bus maintenance and administrative facilities, transfer facilities, bus malls, transportation centers, intermodal terminals, park-and-ride stations, acquisition of replacement vehicles, bus rebuilds, passenger amenities such as passenger shelters and bus stop signs, accessory and miscellaneous equipment such as mobile radio units, supervisory vehicles, fare boxes, computers, and shop and garage equipment. While bus rehabilitation activities (
Section 5339 limits eligible direct (grant) recipients under this program to the Designated Recipients in large UZAs and States for all areas under 200,000 in population (small UZAs and rural areas). States are expected to be the grant recipient for the National Distribution amounts, unless the funds are transferred to a 5307 recipient. Please see additional guidance for permissible transfers in “Other Program Information” section below.
A grant for a capital project under this section shall be for 80 percent of the net capital costs of the project, unless a recipient of a grant provides additional local matching amounts. The local match shall be provided in cash from non-Government sources other than revenues from providing public transportation services; from revenues derived from the sale of advertisement or concessions; from undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital; or from amounts received under a service agreement with a State or local social service agency or private social service organization.
FTA is in the process of finalizing the circular for this formula program. In the meantime, grantees can utilize program guidance and requirements found in this notice along with the interim guidance published in the
The Bus and Bus Facilities Formula Program funds apportioned in this notice are available for obligation during FY 2015 plus three additional years. Accordingly, funds apportioned in FY 2015 must be obligated in grants by September 30, 2018. Any FY 2015 apportioned funds that remain unobligated at the close of business on September 30, 2018 will revert to FTA for reapportionment under the Bus and Bus Facilities Formula Program.
The only allowable transfer provision for these program funds to another FTA program applies to the National Distribution allocation. The Governor of a State may transfer any part of the State's National Distribution amounts to supplement funding under the rural areas (section 5311) or urbanized areas (5307) formula programs. If transferred to a 5307 direct recipient (in a large or small UZA), FTA will permit the recipient to apply directly for the funds in a 5307 grant. However, the funds can only be used for purposes eligible under Section 5339.
As for the funding apportioned by formula, for small UZAs, the Governor has flexibility to allocate the funds among the small UZAs to meet the capital bus needs in those areas.
FTA continues to use formula factors (established under 49 U.S.C. 5340) to distribute additional funds to the section 5307 and section 5311 programs for Growing States and High Density States. FTA publishes single UZA and rural apportionments that show the total amount for 5307 and 5311 programs that includes apportionments for these programs together with section 5340.
The FY 2015 Appropriation provides $350,119,726 to be apportioned using the formula factors prescribed for Growing States and High Density States set forth in section 5340.
Under the Growing States portion of the section 5340 formula, 50 percent of funds are allocated to States on the basis of their projected population growth. FTA projects each State's 2025 population by comparing each State's apportionment year population (as determined by the Census Bureau) to the State's 2010 Census population and extrapolating to 2025 based on each State's rate of population growth between 2010 and the apportionment year. Each State receives a share of Growing States funds on the basis of its projected 2025 population relative to the nationwide projected 2025 population.
Once each State's share is calculated, funds attributable to that State are divided into an UZA allocation and a non-UZA allocation on the basis of the percentage of each State's 2010 Census population that resides in UZA and non-UZA areas. Urbanized areas receive portions of their State's urbanized area allocation on the basis of the 2010 Census population in that UZA relative to the total 2010 Census population in all UZAs in the State. These amounts are added to the UZA's section 5307 apportionment.
The States' rural area allocation is added to the allocation that each State receives under the section 5311 Formula Grants for Rural Areas program.
The remaining 50 percent of the section 5340 funds are allocated under
FTA cannot provide unit values for the Growing States or High Density formulas because the apportionments to individual States and UZAs are based on their relative population data, rather than on a national per capita basis.
The FY 2015 Appropriations provides $150,000,000 for grants to the Washington Metropolitan Area Transit Authority (WMATA). Such funding is authorized under section 601 of the Passenger Rail Investment and Improvement Act of 2008. See Public Law 110–432, Division B, Title VI.
Grants may be provided for capital and preventive maintenance expenditures for WMATA after (1) FTA certifies that WMATA is making significant progress in eliminating the material weaknesses, significant deficiencies, and minor control deficiencies in the most recent Financial Management Oversight Review; and (2) FTA determines that WMATA has placed the highest priority on investments that will improve the safety of the system.
FTA will communicate further program requirements directly to WMATA.
This section includes some changes to automatic pre-award authority published in previous notices, particularly in light of the new authorization and several new formula programs, some of which will require new Designated Recipients before projects costs can be reimbursed.
While FTA provides pre-award authority to incur expenses before grant award for formula programs, it recommends that first-time grant recipients and recipients of grants under new formula programs NOT utilize this automatic pre-award authority without verifying with the appropriate FTA Regional Office that all pre-requisite requirements have been met. As a new grantee, it is easy to misunderstand pre-award authority conditions and be unaware of all of the applicable FTA requirements that must be met in order to be reimbursed for project expenditures incurred in advance of grant award. FTA programs have specific statutory requirements that are often different from those for other Federal grant programs with which new grantees may be familiar. If funds are expended for an ineligible project or activity, or for an eligible activity but at an inappropriate time (
FTA provides pre-award authority to incur expenses before grant award for certain program areas described below. This pre-award authority allows grantees to incur certain project costs before grant approval and retain the eligibility of those costs for subsequent reimbursement after grant approval. The grantee assumes all risk and is responsible for ensuring that all conditions are met to retain eligibility. This pre-award spending authority permits an eligible grantee to incur costs on an eligible transit capital, operating, planning, or administrative project without prejudice to possible future Federal participation in the cost of the project. In this notice, FTA provides pre-award authority until September 30, 2017 for capital assistance under all formula programs, so long as the conditions described below are met. Historically, FTA provides pre-award authority until the end of the authorization period and then extends it in one to two year increments. Recipients entering into any contracts that assume federal funding beyond September 30, 2017, should contact their Regional Office to request a letter of no prejudice (see section below). FTA provides pre-award authority for planning and operating assistance under the formula programs without regard to the period of the authorization. For a discretionary program in which FTA publishes a Notice of Funding Availability (NOFA), recipients should refer to the specific NOFA or notice of award for specific details as to the eligibility of pre-award authority for that funding opportunity. Additional information pertaining to specific uses of pre-award authority is below:
Before incurring costs, grantees are strongly encouraged to consult with the appropriate FTA Regional Office regarding the eligibility of the project for future FTA funds and for questions on environmental requirements, or any other Federal requirements that must be met.
The conditions under which pre-award authority may be utilized are specified below:
All Federal grant requirements must be met at the appropriate time for the project to remain eligible for Federal funding. The growth of the Federal transit program has resulted in a growing number of inexperienced grantees who find compliance with Federal planning and environmental laws increasingly challenging.
FTA has modified its approach to pre-award authority, and the date that costs may be incurred is as follows. For design and environmental review, costs may be incurred as of the date of the authorization of formula funds or the date of the announcement of the discretionary allocation of funds for the project. For property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials for projects that qualify for a categorical exclusion pursuant to 23 CFR 771.118(c), costs may be incurred as of the date of the authorization of formula funds or the date of the announcement of the discretionary allocation of funds for the project. For property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials for projects that require a categorical exclusion pursuant to 23 CFR 771.118(d), an environmental assessment, or an environmental impact statement, costs may be incurred as of the date that FTA completes the environmental review process required by NEPA and its implementing regulations (
The requirement that a project be included in a locally-adopted Metropolitan Transportation Plan, the metropolitan transportation improvement program and federally approved statewide transportation improvement program (23 CFR part 450) must be satisfied before the grantee may advance the project beyond planning and preliminary design with non-Federal funds under pre-award authority triggered by the completion of the NEPA process. If the project is located within an EPA-designated non-attainment or maintenance area for air quality, the conformity requirements of the Clean Air Act, 40 CFR part 93, must also be met before the project may be advanced into implementation-related activities under pre-award authority triggered by the completion of the NEPA process. For projects that qualify for a categorical exclusion pursuant to 23 CFR 771.118(c), if a project is subsequently found not to qualify for this CE, it will be ineligible for FTA assistance. For all other projects, compliance with NEPA and other
For a planning project to have pre-award authority, the planning project must be included in a MPO-approved Unified Planning Work Program (UPWP).
Projects proposed for section 5309 Capital Investment Grants (CIG) program funds are required to follow a process defined in law. For New Starts and Core Capacity projects, this process includes three phases—project development (PD), engineering, and construction. For Small Starts projects, this process includes two phases—PD and construction. After receiving a letter from the project sponsor requesting entry into the PD phase, FTA must respond in writing within 45 days whether the information was sufficient for entry. If FTA's correspondence indicates the information was sufficient and the New Starts, Small Starts or Core Capacity project may enter PD, FTA extends pre-award authority to the project sponsor to incur costs for PD activities. PD activities include the work necessary to complete the environmental review process and as much engineering and design activities as the project sponsor believes are necessary to support the environmental review process. Upon completion of the environmental review process for a New Starts, Small Starts, or Core Capacity Improvement project with a ROD, FONSI, or CE determination by FTA, FTA extends pre-award authority to project sponsors in PD to incur costs for as much engineering and design as needed to develop a reasonable cost estimate and financial plan for the project, utility relocation, and real property acquisition and associated relocations for any property acquisitions not already accomplished as a separate project for hardship or protective purposes or right-of-way under 49 U.S.C. 5323(q). Upon receipt of a letter notifying a New Starts or Core Capacity project sponsor of the project's approval into the engineering phase, FTA extends pre-award authority for any remaining engineering and design, demolition, vehicle purchases, and procurement of long lead items for which market conditions play a significant role in the acquisition price. The long lead items include, but are not limited to, procurement of rails, ties, and other specialized equipment, and commodities. Please contact the FTA Regional Office for a determination of activities not listed here, but which meet the intent described above. FTA provides this pre-award authority in recognition of the long-lead time and complexity involved with purchasing vehicles as well as their relationship to the “critical path” project schedule. FTA cautions grantees that do not currently operate the type of vehicle proposed in the project about exercising this pre-award authority. FTA encourages these sponsors to wait until later in the process when project plans are more fully developed. FTA reminds project sponsors that the procurement of vehicles must comply with all Federal requirements including, but not limited to, competitive procurement practices, the Americans with Disabilities Act, and Buy America. FTA encourages project sponsors to discuss the procurement of vehicles with FTA in regards to Federal requirements before exercising pre-award authority. Because there is not a formal engineering phase for Small Starts projects, FTA does not extend pre-award authority for demolition, vehicle purchases and procurement of long lead items. Instead, this work must await receipt of a construction grant award.
As noted above, FTA extends pre-award authority for the acquisition of real property and real property rights for fixed guideway capital investment
When a tiered environmental review in accordance with 23 CFR 771.111(g) is used, pre-award authority is NOT provided upon completion of the first tier environmental document except when FTA signs the Tier-1 ROD or FONSI and explicitly provides such pre-award authority for a particular identified acquisition. Project sponsors should use pre-award authority for real property acquisition relocation assistance with a clear understanding that it does not constitute a funding commitment by FTA. FTA provides pre-award authority upon completion of the environmental review process for real property acquisition and relocation assistance to maximize the time available to project sponsors to move people out of their homes and places of business, in accordance with the requirements of the URA, but also with maximum sensitivity to the circumstances of the people so affected.
Although FTA provides pre-award authority for property acquisition, long lead items, and vehicle purchases upon completion of the environmental review process, FTA will not make a grant to reimburse the sponsor for real estate activities, vehicle purchases or purchases of long lead items conducted under pre-award authority until the project receives its construction grant. This is to ensure that Federal funds are not risked on a project whose advancement into construction is still not yet assured.
NEPA requires that major projects proposed for FTA funding assistance be subjected to a public and interagency review of the need for the project, its environmental and community impacts, and alternatives to avoid and reduce adverse impacts. Projects of more limited scope also need a level of environmental review, either to support an FTA finding of no significant impact (FONSI) or to demonstrate that the action is categorically excluded (
Except as discussed in paragraphs i through iii above, a major capital investment project sponsor must obtain a written LONP from FTA before incurring costs for any activity. To obtain an LONP, an applicant must submit a written request accompanied by adequate information and justification to the appropriate FTA Regional Office, as described in B below.
LONP authority allows an applicant to incur costs on a project utilizing non-Federal resources, with the understanding that the costs incurred subsequent to the issuance of the LONP may be reimbursable as eligible expenses or eligible for credit toward the local match should FTA approve the project at a later date. LONPs are applicable to projects and project activities not covered by automatic pre-award authority. The majority of LONPs will be for section 5309 Capital Investment Grant (CIG) program (New or
The conditions and requirements for pre-award authority specified in Section V.A.2 and V.A.3. above apply to all LONPs. Because project implementation activities may not be initiated before completion of the environmental review process, FTA will not issue an LONP for such activities until the environmental review process has been completed with a ROD, FONSI, or CE determination.
Before incurring costs for project activities not covered by automatic pre-award authority, the project sponsor must first submit a written request for an LONP, accompanied by adequate information and justification, to the appropriate Regional Office and obtain FTA's written approval. FTA approval of an LONP is determined on a case-by-case basis. Receipt of Federal funding under the capital investment program is not implied or guaranteed by an LONP.
On October 31, 2014, FTA published a Notice of Availability in the
The Department of Transportation's (DOT) Disadvantaged Business Enterprise (DBE) program is an affirmative action program designed to combat discrimination and its continuing effects by providing contracting opportunities on Federally-funded highway, transit, and airport projects for small businesses owned and controlled by socially and economically disadvantaged individuals. Over the years, the Department has met or exceeded the national aspirational goal established by Congress in the statutes authorizing the program since 1983 and has made continuous program improvements. The Department's 2014 Final Rule, which went into effect on November 5, 2014, contains important improvements to the implementation and administration of the DBE program regulations.
First, the Department revised its standard Uniform Certification application to remove unnecessary details (
Second, the Uniform Report of DBE Awards or Commitments and Payments captures data on minority women-owned DBEs and actual payments to DBEs during the reporting period. FTA recipients will continue reporting in TEAM until the new DBE reporting module is finalized in TrAMS, which we expect to be completed by the June 1, 2015 reporting cycle.
Third, MAP–21 requires State Departments of Transportation, on behalf of the Unified Certification Program, submit the percentage of DBEs in the state owned by non-minority women, minority women, and minority men. All reports must be submitted by January 1, 2015 to the USDOT Departmental Office of Civil Rights at
Fourth, bidders/offerors that are required to submit DBE information for a DOT-assisted contract that contains a DBE goal must provide the information at the time of bid (as a matter of responsiveness) or no later than seven days after bid opening (as a matter of responsibility). The seven days period will be reduced to five days beginning January 1, 2017. The DBE information submitted must include the North American Industrial Classification System code applicable to the kind of work the DBE will perform on the contract, and, when a non-DBE subcontractor is selected over a DBE, copies of the quotes from each DBE and non-DBE subcontractor. The bidder/offeror shall make copies of DBE subcontracts available upon request. In addition, the Final Rule provides additional examples of the ways to evaluate good faith efforts. A bidder/offeror will not be deemed to demonstrate good faith if it rejects a DBE simply because it is not the low bidder, or if it is unable to find a replacement DBE at the original price, without more. When evaluating the efforts of the low bidder to meet the contract goal, recipients should review the performance of other bidders.
Fifth, regarding transit vehicle manufacturers (TVMs), the Final Rule adds a definition for TVM that includes ferry boat manufacturers. Recipients purchasing ferries must ensure that they purchase from entities that have been approved by FTA and are therefore on FTA's TVM Web page (
Sixth, recipients are advised that including DBE goals on federally assisted vehicle purchases, without FTA's prior approval, is impermissible. All requests should be submitted to Britney Berry at
Lastly, in order to provide appropriate flexibility in implementing TVM DBE provisions, FTA reminds recipients that overly prescriptive contract specifications on vehicle procurements eliminate opportunities for DBEs in vehicle manufacturing and counter the intent of the DBE program. FTA is acutely aware that recipients identify specific major system suppliers in the request for proposals (RFPs), which effectively excludes small businesses and DBEs from the most lucrative portion of the vehicle contract: The major systems. FTA urges recipients to explore ways that encourage TVMs and major systems suppliers to implement supplier diversity and development programs, which will assist TVMs in achieving their DBE goals.
The U.S. DOT's Title VI implementing regulations are found in 49 CFR part 21. FTA's Title VI Circular (4702.1B) provides guidance on carrying out the regulatory requirements. For recipients in urbanized areas of 200,000 or more in population and with 50 or more fixed-route vehicles in peak service, the recipient must conduct a service equity analysis for all service changes that meet the recipient's definition of “major service change” prior to implementing the service change. Recipients also must conduct a fare equity analysis for all fare increases or decreases prior to implementing a fare change. Furthermore, an environmental justice analysis is not a substitute for a Title VI service equity analysis triggered by a major service change or fare change. As recipients prepare their budgets, it is vitally important that an appropriate major service change or fare change analysis is completed prior to taking the proposed action. Should you have any questions, please contact your Regional Civil Rights Officer.
FTA has developed a 12 chapter Circular regarding recipient compliance with ADA requirements. A notice was published in the
Certain Federal-aid highway program funds under the title 23 may be transferred or “flexed” to FTA for eligible Title 49, Chapter 53 purposes. These Title 23 programs include the Surface Transportation Program (23 U.S.C. 133) (STP), the Transportation Alternatives Program (23 U.S.C. 101) (TAP), the Congestion Mitigation and Air Quality Improvement Program (23 U.S.C. 149) (CMAQ), the National Highway Performance Program (23 U.S.C. 119) (NHPP).
Section 104(f) of title 23 U.S.C. allows FHWA, at the request of the State, to transfer funds for transit capital projects and eligible operating activities that have been designated as part of the metropolitan and statewide planning and programming process. The project must be included in an approved STIP before the funds can be transferred. The State DOT may request, by letter, that the FHWA Division Office transfer highway funds for a transit project. The letter should include a description of the project as contained in the STIP, the amount to be transferred, the apportionment year, State, urbanized area, Federal-aid apportionment category (
Once a written request for transfer is received (using FHWA transfer request form 1576), if, upon review, the FHWA Division Office concurs in the transfer, it provides written confirmation to the State DOT and FTA that the apportionment amount is available for transfer. The FHWA Division Office provides the transfer request to the FHWA Office of Budget which transfers the funds to FTA.
FHWA funds transferred to FTA will be administered under one of the three FTA formula programs (
Transferred funds may be used for a capital transit purpose eligible under the FTA formula program to which they are transferred. MAP–21 revised the operating assistance eligibilities under CMAQ as described in Section 3 below.
The FTA grantee's application for the project must specify the program in which the funds will be used, and the application must be prepared in accordance with the requirements and procedures governing that program. Upon review and approval of the grantee's application, FTA obligates funds for the project.
In the event that the transferred funds are not obligated for the intended purpose within the period of availability of the formula program to which they were transferred, in most instances, they become available to the State for any eligible capital transit project under the program to which they were transferred.
Pursuant to 23 U.S.C. 104(f)(1)(B), FHWA funds transferred to FTA retain the same matching share that the funds would have if used for highway purposes and administered by FHWA. For the STP, CMAQ, and TAP programs, this Federal share is generally 80 percent, subject to upward adjustment in sliding scale States as noted below.
For a period of time under SAFETEA–LU, CMAQ funds were available at a 100 percent Federal share. Starting on October 1, 2012, the CMAQ Federal share generally will be 80 percent. There are a few instances in which a Federal share on funds transferred from FHWA can be higher than 80 percent. In States with large areas of Indian and certain public domain lands and national forests, parks and monuments, the local share for highway projects is determined by a sliding scale rate, calculated based on the percentage of public lands within that State. This sliding scale, which permits a greater Federal share, but not to exceed 95 percent, is applicable to transfers used to fund transit projects in these public land States. FHWA develops the sliding scale matching ratios for the increased Federal share. Also, there may be instances where the applicable Federal share may be reduced to a lower Federal share than is generally applicable, such as under the NHPP where the Federal share must be reduced to a maximum of 65 percent if the State DOT does not develop and implement an asset management plan.
Certain safety projects or projects that include an air quality or congestion relief component such as commuter carpooling and vanpooling projects using FHWA transfer funds administered by FTA may retain the same 100 percent Federal share; however, these projects are subject to a limitation for each State of an amount equal to 10 percent of the sums apportioned for programs under 23 U.S.C 104.
For further guidance, please see FHWA Order, issued on August 12, 2013 on “Fund Transfers to Other Agencies and Among Title 23 Programs”, which is available at
The CMAQ program, at 23 U.S.C. 149, continues to provide a flexible funding source to State and local governments for transportation projects and programs to help achieve the goals of the Clean Air Act. Funding is available for projects that reduce congestion and improve air quality for areas that do not meet the National Ambient Air Quality Standards (NAAQS) for ozone, carbon monoxide, or particulate matter—nonattainment areas—and for areas that were out of compliance but have now met the standards—maintenance areas. Transit investments, including transit vehicle acquisitions and construction of new facilities or improvements to facilities that increase transit capacity may be eligible for CMAQ funds. For additional information on this program, refer to the Interim CMAQ Program Guidance under MAP–21 available at
Under limited circumstances, funds may also be used for operating assistance. Refer to the Revised Interim Guidance on CMAQ Operating Assistance under MAP–21 available at
As a reminder, all CMAQ transfer requests initiated by grantees to the MPO and State, and ultimately processed from FHWA to FTA, must clearly identify whether the CMAQ funds will be used for operating assistance or capital projects. Grantees must clearly identify the operating assistance amounts in the grant budget and, also, when requesting expenditures in ECHO-Web.
FTA and FHWA planning funds under both the Metropolitan Planning and State Planning and Research Programs can be consolidated into a single consolidated planning grant (CPG), awarded by either FTA or FHWA. The CPG eliminates the need to monitor individual fund sources, if several have been used, and ensures that the oldest funds will always be used first. Under the CPG, States can report metropolitan planning program expenditures (to comply with the Single Audit Act) for both FTA and FHWA under the Catalogue of Federal Domestic Assistance number for FTA's Metropolitan Planning Program (20.505). Additionally, for States with an FHWA Metropolitan Planning (PL) fund-matching ratio greater than 80 percent, FTA's 20 percent local share requirement can be waived to allow FTA funds used for metropolitan planning in a CPG to be granted at the higher FHWA rate. For some States, this Federal match rate can exceed 90 percent.
States interested in transferring planning funds between FTA and FHWA should contact the FTA Regional Office or FHWA Division Office for more detailed procedures. Current guidelines are included in FHWA's Order dated August 12, 2013, on “Fund Transfers to Other Agencies and Among Title 23 Programs”, which is available at
For further information on CPGs, contact Ann Souvandara, Office of Budget and Policy, FTA, at (202) 366–0649.
All applications for FTA funds should be submitted to the appropriate FTA Regional Office. FTA utilizes TEAM-Web, an Internet-accessible electronic grant application system, and all applications are filed electronically. As noted in Section III of this notice, beginning in April, FTA will use the TrAMS system as a replacement to TEAM.
FTA regional staff is responsible for working with grantees to review and process grant applications. In order for an application to be considered complete and for FTA to assign a grant number, enabling submission in TEAM-Web and submitted to Department of Labor (when applicable), the following requirements must be met:
• Recipient's contact information, including Dun and Bradstreet Data Universal Numbering System (DUNS), is correct and up-to-date. If requested by phone (1–866–705–5711), DUNS is provided immediately. If your organization does not have one, you will need to go to the Dun & Bradstreet Web site at
• Recipient has registered in the System for Award Management (SAM) and its registration is current. (
• Recipient has properly submitted its annual certifications and assurances.
• Recipient's Civil Rights submissions are current and approved.
• Documentation is on file to support recipient's status as either a designated recipient (for the program and area) or a direct recipient.
• Funding is available, including any flexible funds included in the budget, and split letters or suballocation letters on file (where applicable) to support amount being applied for in grant application.
• The project is listed in a currently approved Transportation Improvement Program (TIP); Statewide Transportation Improvement Program (STIP), or Unified Planning Work Program (UPWP).
• All eligibility issues are resolved.
• Required environmental findings are made.
• The project budget's Activity Line Items (ALI), scope, and project description meet FTA requirements.
• Local share funding source(s) is identified.
• For projects involving new construction (using at least $100 million in New Starts or formula funds), FTA has reviewed the project management plan and given approval.
• Milestone information is complete, or FTA determines that milestone information can be finalized before the grant is ready for award. FTA will also review status of other open grants' reports to confirm financial and milestone information is current on other open grants and projects.
Before FTA can award grants for discretionary projects and activities, notification must be given to the House and Senate authorizing and appropriations committees.
Other important issues that impact FTA grant processing activities are discussed below.
Each applicant or recipient of Federal Funds is required to: (1) Be registered in SAM before submitting its application; (2) provide a valid DUNS number in its application; and (3) continue to maintain an active SAM registration with current information at all times during which it has an active award or an application or plan under consideration by the Federal Transit Administration (FTA). FTA will not make an award to an applicant until the applicant has complied with all applicable DUNS and SAM requirements and, if an applicant has not fully complied with the requirements by the time the FTA is ready to make a Federal award, FTA may determine that the applicant is not
The System for Award Management (SAM)
FTA uses the SCOPE and Activity Line Item (ALI) Codes in the grant budgets to track program trends, to report to Congress, and to respond to requests from the Inspector General and the Government Accountability Office (GAO), as well as to manage grants. The accuracy of the data is dependent on the careful and correct use of codes. FTA is in the process of revising the SCOPE and ALI table to include new codes for the newly eligible capital items, to better track certain expenditures, and to accommodate the new programs. FTA encourages grantees to review the table before selecting codes from the drop-down menus in TEAM-Web while creating a grant budget. Additional information about how to use the SCOPE and ALI codes to accurately code budgets will be added to the resources available through TEAM-Web.
Under sections 5307 and 5311, FTA will continue to use the SCOPE established for job access and reverse projects (646–00) in order to track the use of these program funds for this eligible purpose. Similarly, for section 5310 grants made with FY 2013 and later funds, FTA will continue to use the SCOPE established for “new-freedom” type projects (647–00).
In addition to SCOPE and ALI codes, FTA uses financial purpose codes (FPCs) in TEAM to identify specific funding uses and track the actual obligations and expenditures of funds to a specific use, such as capital, planning, or operating. FPCs are identified at the time program funds are reserved and must be identified when a grantee requests a draw-down in ECHO-web. The available FPCs differ by program, based on the programs eligibility. For example, in a grant for a capital-only program (
For its formula programs, FTA primarily apportions funds to the Designated Recipient in the large UZAs (areas over 200,000), or for areas under 200,000 (small UZAs and rural areas), it apportions the funds to the Governor, or its designee (
For the programs in which FTA can make grants to eligible direct recipients, other than the Designated Recipient(s), recipients are reminded that documentation must be on file to support the (1) status of the recipient either as a Designated Recipient or direct recipient; and (2) the allocation of funds to the direct recipient. Additionally, FTA requires a supplemental agreement to be pinned to the grant in TEAM-Web prior to grant execution. The supplemental agreement is required when the recipient of the funds is not the Designated Recipient. It permits the grant recipient (
Under MAP–21, with the exception of the new UZAs resulting from the 2010 Census under the section 5307 program, the only program for which NEW designations are needed in the large urbanized areas before a grant can be made is section 5310. Before the first grant application in a large UZAs under section 5310 is submitted to FTA, the Governor must designate an agency charged with administering the Enhanced Mobility of Seniors and Individuals with Disabilities funds. This designation must be on file with the Regional Office prior to the award of any section 5310 grants in large UZAs.
For all other programs, documentation to support existing designated recipients for the UZA must also be on file at the time of the first application in FY 2015. Further, split letters and/or suballocation letters (Governor's Apportionment letters), must also be on file to support grant applications from direct recipients.
Once a grant has been awarded and executed, requests for payment can be processed. To process payments FTA uses ECHO-Web, an Internet accessible system that provides grantees the capability to submit payment requests on-line, as well as receive user-IDs and passwords via email. New applicants should contact the appropriate FTA Regional Office to obtain and submit the registration package necessary for set-up under ECHO-Web.
FTA is responsible for conducting oversight activities to help ensure that grants recipients use FTA federal financial assistance in a manner consistent with their intended purpose and in compliance with regulatory and statutory requirements. FTA conducts periodic oversight reviews to assess grantee compliance with applicable Federal requirements. Each Urbanized Area Formula Program recipient is reviewed every three years, (also known as FTA's Triennial Review); and States and state-wide public transportation agencies are reviewed periodically to assess the management practices and program implementation of FTA state-wide programs (
As noted throughout the notice, FTA continues to rely on several of the existing program circulars for general program guidance. FTA is continuing to update the program circulars, with an opportunity for notice and comment, to reflect changes under MAP–21. In the
Recipients of FTA funds are reminded that all FTA grantees require some level of grant reporting and that it is critical to ensure reports demonstrate reasonable progress is being made on the project. At a minimum, all grants require a Federal Financial Report (FFR) and a Milestone Progress Report (MPR) on an annual basis, with some reports required quarterly depending on the recipient and the type of projects funded under the grant. The requirements for these reports and other reporting requirements can be found in FTA Circular 5010.1D,
In FY 2015, FTA will continue to focus on inactive grants and grants that do not comply with reporting requirements and, if appropriate, will take action to close out and deobligate funds from these grants if reasonable progress is not being made. The efficient use of funds will further FTA's fulfillment of its mission to provide efficient and effective public transportation systems for the nation.
Furthermore, inactive grants continue to be a major audit finding within the Department of Transportation and FTA must take action to ensure its grants do not impact the Department not receiving a “clean audit” opinion on its annual financial statement audit.
In October of 2014 FTA identified a list of grants that were awarded on or prior to September 30, 2011 and have had no funds disbursed since September 30, 2012 or have never had a disbursement.
FTA Regional Offices will be contacting grant recipients with one or more grants that meet this criteria to notify them that FTA intends to close the grant and deobligate any remaining funds unless the grantee can provide information that demonstrates that the projects funded by the grant remain active and the grantee has a realistic schedule to expedite completion of the projects funded in the grant.
In addition, recipients of open American Recovery and Reinvestment Act (ARRA) grants should be aware that, as a matter of law, all remaining ARRA funds MUST be disbursed from grants by the end of the 5th fiscal year (FY) after funds were required to be obligated. (SEE 31 U.S.C. 1552.) For FTA ARRA projects, that requirement takes affect at the end of FY 2015. Accordingly, once ECHO closes for disbursements in late September 2015, all remaining funds within FTA ARRA funded grants will no longer be available to the grantee and will be deobligated from the grant. Even if a grantee has incurred costs or disbursed funds prior to the close of ECHO, if the grantee has not actually drawn down the funds by the time ECHO closes in late September, FTA will be unable to reimburse the grantee. Therefore, grantees with open ARRA grants must ensure project activities are completed and all funds are drawdown before ECHO closes by late September 2015. For ARRA TIGER 1 projects, the same requirement will be in effect for the end of FY 2016.