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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the Virus-Serum-Toxin Act regulations to require that veterinary biologics prepared under the veterinary practitioner exemption must be prepared at the same facility the veterinarian utilizes in conducting the day-to-day activities associated with his or her practice. This exemption applies to veterinary biologics prepared by a veterinary practitioner solely for administration to animals in the course of a State-licensed professional practice of veterinary medicine under a veterinarian-client-patient relationship. This rule is necessary to ensure that veterinary biologics are not prepared in unlicensed establishments in violation of the Virus-Serum-Toxin Act and to clarify the regulations regarding the preparation of product by a veterinary practitioner under a veterinarian-client-patient relationship.
Effective July 10, 2015.
Dr. Donna Malloy, Operational Support Section, Center for Veterinary Biologics, Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737–1231; phone (301) 851–3426, fax (301) 734–4314.
The regulations in Title 9, Code of Federal Regulations (9 CFR), parts 101–118 (referred to below as the regulations) contain provisions implementing the Virus-Serum-Toxin Act (the Act), as amended (21 U.S.C. 151–159). These regulations are administered by the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA). The Act prohibits the preparation, sale, and shipment of veterinary biological products in or from the United States unless such products have been prepared under and in compliance with USDA regulations at an establishment holding an unsuspended and unrevoked license issued by USDA.
In part 102 of the regulations, §§ 102.1 and 102.2 require that each establishment and every person preparing biological products subject to the Act must hold an unexpired, unsuspended, and unrevoked U.S. Veterinary Biologics Establishment License issued by the Administrator and a U.S. Veterinary Biological Product License for each product prepared in such establishment. Part 107 of the regulations contains exemptions from the requirement for preparation pursuant to unsuspended and unrevoked establishment and product licenses. One of those exemptions, found in § 107.1(a)(1), allows for product to be prepared by a veterinary practitioner solely for administration to animals in the course of his or her State-licensed professional practice of veterinary medicine under a veterinarian-client-patient relationship. The regulations in § 107.1(a)(1) also set forth the criteria that must be satisfied in order to establish the existence of a veterinarian-client-patient relationship.
On July 18, 2012, we published in the
We solicited comments concerning our proposal for 60 days ending September 17, 2012. We reopened and extended the deadline for comments until November 16, 2012, in a document published in the
Some commenters not only supported the proposal but recommended that we speed the implementation process along.
We are finalizing this rule as expeditiously as possible. Given the number of comments we received on the proposed rule and the substantive nature of most of them, however, we determined that we needed to carefully review and evaluate those comments before implementing any regulatory changes.
Several organizations and a number of veterinary practitioners raised concerns about what they termed the “forced relocation” of preparation sites for veterinary biologics to the same facility in which the veterinarian conducts day-to-day activities connected with his or her practice. Commenters stated that a veterinary practice is an environment poorly suited to the aseptic conditions required for biologics production and that personnel working in these facilities are trained in animal care rather than in specialized laboratory work. Several commenters recommended that APHIS revise the rule to require that, regardless of the location of the production facility, veterinarians that use the facility must document regular involvement in the management of the facility, provide such documentation on request, and allow regular on-site inspections, presumably by APHIS.
APHIS disagrees with the commenters' recommendation. As noted in the preamble to the July 2012 proposed rule, the intent of the veterinary practitioner exemption in § 107.1(a)(1) is to allow a practitioner to prepare exempt biological products at a location not licensed under the Act, where the practitioner operates a veterinary practice, and to transport such products away from that facility when necessary for administration to an animal or animals under a veterinarian-client-patient relationship without violating the Act. The intention behind the proposed rule was to clarify the relationship between the veterinary practitioner and the facility where exempt veterinary biological product is prepared. No provision in the Act or the regulations allows an unlicensed commercial laboratory, acting as the agent for the practitioner, to prepare, produce, sell, and ship the veterinary biological product under the exemption in § 107.1(a)(1). Such an arrangement would violate the Act. Nothing in this rule or in the Act, however, prevents veterinarians from working with establishments with a license to produce autogenous products,
Commenters expressed concern about how this rule would affect practitioners who have offices in multiple locations in which there are multiple practitioners. It was stated that changes within the swine industry have led many veterinarians to practice in this manner. According to the commenters, this rule would potentially require that a “brick and mortar” location for vaccine production would have to be the same as the physical location of the veterinarian. In the commenters' view, such a requirement could prove problematic for a multi-location veterinary practice in which there may only be one location suitable for the preparation of exempt veterinary biological product. Commenters questioned how we would address the issue of multiple locations managed by the same veterinarian or practice even though the prescribing veterinarian may not routinely work out of the office where the exempt biological product is prepared.
APHIS acknowledges that it has become a common occurrence in the swine industry for swine practitioners to work in multi-veterinarian, multi-location corporate practices. Nothing in this rule, however, prohibits a veterinarian from producing an exempt biological product in any of the locations routinely used in his or her day-to-day practice, provided that the other conditions in § 107.1 are met.
Noting that § 107.1(a)(2) of the proposed rule stated that a biological product may be prepared by a veterinary assistant under the veterinarian's “direct supervision,” some commenters, while generally supportive of the rule, requested that we clarify how we define that term.
APHIS interprets “direct supervision” to mean that the licensed veterinarian is readily available on the premises where the product is being prepared and has the responsibility for its preparation by the assistant working under his or her direction.
Some commenters suggested that the emphasis of the rule should be redirected away from location of the exempt facilities and toward the quality and management of the facilities where the products are prepared. It was stated that the rule focuses too much on location and not enough on animal health.
As noted above, the purpose of this rule is to clarify who may prepare exempted biological products and where those exempted products may be prepared under the regulations. Requirements pertaining to the quality and management of veterinary biologics establishments are already addressed in 9 CFR part 108.
Some commenters maintained that unlicensed laboratories should be allowed to prepare and ship exempt veterinary biological products on behalf of veterinary practitioners, that the rule may hinder innovative practices, and that the relationship between the veterinarian and the facility should be legal rather than location-based. The commenters expressed concern that the rule will restrict veterinarians' access to certain customized vaccines that are prepared in specialized settings and thus prevent practitioners from responding rapidly to mutating viruses. Several commenters cited the case of an Iowa manufacturer, which they viewed as an innovative company with expertise in new technologies that enabled it to prepare vaccines quickly and effectively. The commenters stated that that company's activities may be restricted under this rule.
The purpose of this rule is to clarify the relationship between the veterinary practitioner and the facility where exempt veterinary biological products are prepared. We do not intend to hinder innovation and the development of valuable new technologies, nor do we anticipate that this rule will have such an effect. Any manufacturing establishment wishing to provide its technology and expertise to veterinarians has several licensing options that will allow it to market its product. To cite one example, in 2012, APHIS published guidelines for obtaining a conditional veterinary biologics license using production platform technology. These guidelines, which describe the policies and procedures regarding the licensure of product platforms based on recombinant technology, can be viewed at
Some commenters expressed concerns about how this rule may affect minor species, in particular, the aquaculture industry. It was stated that the language contained in the proposed rule was too restrictive, as it was based on an erroneous assumption of a homogenous type of veterinary practice involving mainly major species where there is only in-patient or on-the-farm care. Veterinary practitioners in the aquaculture industry routinely prepare autogenous vaccines, which may be isolated from a particular school of fish. A commenter stated that for minor species and minor indications, it is not cost-effective to have separate facilities for the preparation of existing exempt vaccines and autogenous vaccines. The commenter recommended that, for minor species applications, we add a provision to the final rule allowing the production of exempt biological products in a veterinary establishment that has either full or autogenous licensure to produce biologics, provided that the practitioner can demonstrate temporal and sanitary separation between exempt and non-exempt products.
We do not agree that adding such a provision to the regulations is necessary. This rule does not affect the preparation of exempt veterinary biological product for minor species, such as farmed fish; it merely clarifies where such products can be prepared. Veterinarians who service minor species will continue to have the options currently available to them of preparing an exempt product or working with a licensed establishment to produce an autogenous vaccine.
The July 2012 proposed rule included some additional changes to § 107.1. Specifically, we proposed to replace the term “establishments” with “facilities” in the introductory text and in paragraph (a)(1). One commenter favored retaining the original terminology. The commenter stated that “facilities” is too narrow a term and that, conversely, “establishments” correctly reflects many of the types of operations that licensed veterinarians are associated with (ambulatory, zoos,
We do not agree with this comment. The reason for the proposed change in terminology was to distinguish between manufacturers that produce licensed biological products in licensed establishments and those that produce exempt veterinary biological products under the conditions described in § 107.1. The introductory text of § 107.1 contains a reference to establishment licenses. Elsewhere in the regulations, including § 107.2, only production sites that are not exempt from licensing requirements are referred to as establishments. Drawing a clear distinction between establishments, where vaccines are prepared in accordance with our licensing requirements, and facilities, where exempt products are produced, helps to clarify the regulations and eliminate possible confusion.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.
This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under
This final rule amends the regulations in § 107.1 to clarify that the preparation of biological products pursuant to the exemption in paragraph (a)(1) of that section must take place at the same facility that the veterinarian preparing the product utilizes in conducting the day-to-day activities associated with his/her State-licensed professional practice of veterinary medicine.
The exemption applies to veterinary biologics prepared by a veterinary practitioner solely for administration to animals in the course of a State-licensed professional practice of veterinary medicine under a veterinarian-client-patient relationship. No provision in the Act or the regulations allows a veterinary practitioner to take advantage of the licensing exemption while at the same time consigning the actual preparation of the product to a commercial laboratory or other manufacturing establishment which would then exchange or deliver the product to a third party.
The Regulatory Flexibility Act requires agencies to consider whether a rule will have a significant economic impact on a substantial number of small entities.
Some commenters on the July 2012 proposed rule expressed concerns that the rule would adversely affect how veterinary practitioners conduct day-to-day activities connected with their practices, prevent veterinarians from working with commercial labs or manufacturing facilities in preparing vaccines, and hinder the development of innovative practices.
For the most part, there should be little or no effect on veterinary practitioners. Veterinary practitioners who are in compliance with the regulations do not need to alter the way they conduct their veterinarian-client-patient relationships. This final rule will not change the nature of the exemption, the number of veterinary practitioners eligible to take advantage of the exemption, or the criteria that must be satisfied in order to establish the existence of a veterinarian-client-patient relationship. Also, this final rule will not add any additional reporting or recordkeeping burden.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies where they are necessary to address local disease conditions or eradication programs. However, where safety, efficacy, purity, and potency of biological products are concerned, it is the Agency's intent to occupy the field. This includes, but is not limited to, the regulation of labeling. Under the Act, Congress clearly intended that there be national uniformity in the regulation of these products. There are no administrative proceedings which must be exhausted prior to a judicial challenge to the regulations under this rule.
This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal biologics, Reporting and recordkeeping requirements.
Accordingly, we are amending 9 CFR part 107 as follows:
21 U.S.C. 151–159; 7 CFR 2.22, 2.80, and 371.4.
The addition reads as follows:
(a) * * *
(2) All steps in the preparation of product being prepared under the exemption in paragraph (a)(1) of this section must be performed at the facilities that the veterinarian utilizes for the day-to-day activities associated with the treatment of animals in the course of his/her State-licensed professional practice of veterinary medicine. A veterinary assistant employed by the veterinary practitioner and working at the veterinary practice's facility under the veterinarian's direct supervision may perform the steps in the preparation of product. Such preparation may not be consigned to any other party or sub-contracted to a commercial laboratory/manufacturing facility.
Farm Credit Administration.
Notice of effective date.
The Farm Credit Administration (FCA or we) adopted a final rule related to Farm Credit System (System) bank and association disclosures to shareholders and investors of senior officer compensation in the Summary Compensation Table (Table). Under the final rule, System banks and associations are not required to report in the Table the compensation of employees who are not senior officers and who would not otherwise be considered “highly compensated employees” but for the payments related to, or change(s) in value of, the employees' qualified pension plans, provided that the plans were available to all employees on the same basis at the time the employees joined the plans. In accordance with the law, the effective date of the rule is 30 days from the date of publication in the
Michael T. Wilson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102–5090, (703) 883–4124, TTY (703) 883–4056, or Jeff Pienta, Senior Attorney, Office of General Counsel, Farm Credit Administration, McLean, VA 22102–5090, (703) 883–4020, TTY (703) 883–4056.
The Farm Credit Administration adopted a final rule related to System bank and association disclosures to shareholders and investors of senior officer compensation in the Summary Compensation Table. Under the final rule, System banks and associations are not required to report in the Table the compensation of employees who are not senior officers and who would not otherwise be considered “highly compensated employees” but for the payments related to, or change(s) in value of, the employees' qualified pension plans, provided that the plans were available to all employees on the same basis at the time the employees joined the plans. In accordance with 12 U.S.C. 2252, the effective date of the final rule is 30 days from the date of publication in the
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
This action amends Special Federal Aviation Regulation (SFAR) No. 77, “Prohibition Against Certain Flights Within the Territory and Airspace of Iraq,” which prohibits certain flight operations in the territory and airspace of Iraq by all United States (U.S.) air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons are operating a U.S.-registered civil aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers. On August 8, 2014, the FAA issued a Notice to Airmen (NOTAM) prohibiting flight operations in the ORBB FIR at all altitudes, subject to certain limited exceptions, due to the armed conflict in Iraq. This amendment to SFAR No. 77 incorporates the flight prohibition set forth in the August 8, 2014, NOTAM into the rule. The FAA is also revising the approval process for this SFAR for other U.S. Government departments, agencies, and instrumentalities, to align with the approval process established for other recently published flight prohibition SFARs. This final rule will remain in effect for two years.
This final rule is effective
For technical questions about this action, contact Will Gonzalez, Air Transportation Division, AFS–220, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–8166; email:
For legal questions concerning this action, contact: Robert Frenzel, Office of the Chief Counsel, AGC–200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267–7638, email:
Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” In this instance, the FAA finds that notice and public comment to this immediately adopted final rule, as well as any delay in the effective date of this rule, are impracticable and contrary to the public interest due to the immediate need to address the potential hazard to civil aviation that now exists in the ORBB FIR, as described in the Background section of this rule.
The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA's authority to issue rules on aviation safety is found in title 49, U.S. Code. Subtitle I, section 106(f),
This rulemaking is promulgated under the authority described in title 49, subtitle VII, part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security. This regulation is within the scope of that authority, because it amends SFAR No. 77, § 91.1605, to incorporate the prohibition set forth in the August 8, 2014, NOTAM on flight operations at all altitudes in the ORBB FIR due to the potential hazard to U.S. civil aviation posed by the armed conflict in Iraq. This amendment will remain in effect for two years. The FAA will continue to actively evaluate the area and amendments to the SFAR may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind the SFAR as necessary prior to its expiration date.
On October 9, 1996 (61 FR 54020 (October 16, 1996)), the FAA issued SFAR No. 77 to prohibit flight operations over or within the territory and airspace of Iraq by any U.S. air carrier or commercial operator; by any person exercising the privileges of an airman certificate issued by the FAA, except persons operating U.S.-registered aircraft for a foreign air carrier; or by any person operating an aircraft registered in the United States, unless the operator of such aircraft was a foreign air carrier. The prohibition was issued in response to concerns for the safety and security of U.S. civil flights within the territory and airspace of Iraq. In the final rule, the FAA cited a threat made by then President of Iraq Saddam Hussein, who urged his air defense forces to ignore both the southern and northern no-fly zones that were then in place and to attack “any air target of the aggressors.” 61 FR 54020. The FAA was concerned that this threat could apply to civilian as well as to military aircraft, and therefore issued SFAR No. 77.
In early 2003, a U.S.-led coalition removed Saddam Hussein's regime from power in Iraq. The FAA anticipated that when hostilities ended in Iraq, humanitarian efforts would be needed to assist the people of Iraq. To facilitate those efforts, in April 2003, the FAA amended what was then paragraph 3 of SFAR No. 77 to clarify the approval process for such flights, making clear that operations could not be authorized by another agency without the approval of the FAA. The FAA issued the amendment on April 7, 2003 (68 FR 17870 (April 11, 2003)).
On November 13, 2003 (68 FR 65382 (November 19, 2003)), the FAA determined that certain limited overflights of Iraq could be conducted safely, subject to the permission of the appropriate authorities in Iraq and in accordance with the conditions established by those authorities. Accordingly, the FAA amended SFAR No. 77 to permit overflights of Iraq above flight level (FL) 200. That amendment also allowed aircraft departing from countries adjacent to Iraq to operate at altitudes below FL 200 within Iraq to the extent necessary to permit a climb above FL 200 if the climb performance of the aircraft would not permit operation above FL 200 prior to entering Iraqi airspace.
On April 19, 2004 (69 FR 21953 (April 23, 2004)), the FAA issued an interpretation of SFAR No. 77, entitled “Prohibition Against Certain Flights Within the Territory and Airspace of Iraq; Approval Process for Requests for Authorization to Operate in Iraqi Airspace,” (the 2004 Interpretation) in the
On November 28, 2012 (77 FR 72709 (December 6, 2012)), the FAA again amended SFAR No. 77, § 91.1605, effective January 7, 2013, to allow U.S. civil flight operations to and from points outside Iraq, to and from Erbil (ORER) and Sulaymaniyah (ORSU) International Airports in Northern Iraq by persons previously prohibited from conducting such operations by SFAR No. 77, § 91.1605, based on results of evaluations of the airports. ORER and ORSU had supported non-U.S. air carrier operations for a number of years without incident. Based largely on the initiation of those operations and on improvements in the operational environment, the FAA determined that flights by U.S. operators could be conducted safely to those two airports under certain conditions. Therefore, the FAA amended SFAR No. 77, § 91.1605, to allow certain flights within the territory and airspace of Iraq north of 34°30′ North latitude below FL 200 to and from ORER or ORSU, with certain conditions and limitations.
Once the December 2012 amendment went into effect, neither an exemption nor an approval under paragraph (c) of SFAR No. 77 was required for operations to or from ORER or ORSU. However, paragraph (b)(5) required operators flying to or from ORER or ORSU to or from points outside Iraq to obtain a Letter of Authorization (LOA) or Operations Specification (OpSpec), as appropriate, from the Director, Flight Standards Service, AFS–1, prior to conducting such operations. The OpSpec or LOA specified the limitations and conditions under which the operation had to be conducted, to address the residual risk associated with operating into and out of those two airports.
On July 31, 2014, the FAA issued a NOTAM prohibiting flight operations in the territory and airspace of Iraq at or below FL 300 because of significant changes in the operational environment for U.S. civil aviation. The recent resurgence of groups, such as the Islamic State of Iraq and the Levant (ISIL), also known as the Islamic State of Iraq and Syria (ISIS), and their ongoing combat operations against the Iraqi government and its allies had led to an increased threat to U.S. civil aviation in Iraq. ISIL was rapidly acquiring weapons from captured Iraqi or Syrian stocks and had former military personnel to operate those weapons. ISIL had shot down Iraqi rotary-wing and fixed-wing aircraft flying at low altitudes, and also had man-portable air defense systems and other anti-aircraft weapons that provided the capability to target aircraft at higher altitudes. As a result, the FAA determined that ISIL posed an increased threat to U.S. civil aviation operating in Iraqi airspace at or below FL 300.
The July 31, 2014, NOTAM increased restrictions on operations in the territory and airspace of Iraq beyond the restrictions contained in SFAR No. 77, § 91.1605, which remained in effect. The following operations that had been permitted under SFAR No. 77, § 91.1605, were prohibited by the July 31, 2014, NOTAM: (1) Overflights of Iraq above FL 200 but at or below FL 300; (2) operations at or below FL 300 by flights departing from countries
On August 7, 2014, President Obama announced that he had authorized targeted airstrikes against militants associated with ISIL if they moved toward the Iraqi city of Erbil, as well as targeted airstrikes, if necessary, to help Iraqi forces as they fought to break the siege of Mount Sinjar and to protect the civilians trapped there. The President also stated that the U.S. was conducting humanitarian air drops to aid the trapped civilians. U.S. forces began conducting airstrikes on August 8, 2014. On the same day, the FAA issued a NOTAM that prohibited U.S. civil flight operations in the ORBB FIR at all altitudes due to the potentially hazardous situation created by the armed conflict between militants associated with ISIL and Iraqi security forces and their allies. The August 8, 2014, NOTAM superseded the July 31, 2014, NOTAM. This amendment to SFAR No. 77, § 91.1605, revises the rule to incorporate the flight prohibition set forth in the August 8, 2014, NOTAM.
Because the circumstances described herein warrant immediate action by the FAA, I find that notice and public comment under 5 U.S.C. 553(b)(3)(B) are impracticable and contrary to the public interest. Further, I find that good cause exists under 5 U.S.C. 553(d) for making this rule effective immediately upon issuance. I also find that this action is fully consistent with the obligations under 49 U.S.C. 40105 to ensure that I exercise my duties consistently with the obligations of the United States under international agreements.
This action amends SFAR No. 77, § 91.1605, to incorporate the prohibition contained in the FAA's August 8, 2014, NOTAM on flight operations at all altitudes in the ORBB FIR by all U.S. air carriers; U.S. commercial operators; persons exercising the privileges of a U.S. airman certificate, except when such persons are operating a U.S.-registered civil aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except when such operators are foreign air carriers. The FAA finds this action necessary to prevent a potential hazard to persons and aircraft engaged in such flight operations.
In some instances, U.S. government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in Iraq. The FAA believes that it has provided a more streamlined approval processes for other U.S. government departments, agencies, and instrumentalities in more recent flight prohibition SFARs than the 2004 Interpretation would allow, and that an approval process similar to those adopted for recent SFARs may be instituted for SFAR No. 77, § 91.1605, while still addressing the threats to U.S. civil aviation in the ORBB FIR. Therefore, the FAA withdraws the 2004 Interpretation in its entirety and replaces it with the approval process described below.
If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person covered under SFAR No. 77, § 91.1605, including a U.S. air carrier or a U.S. commercial operator, to conduct a charter to transport civilian or military passengers or cargo, that department, agency, or instrumentality may request the FAA to approve persons covered under SFAR No. 77, § 91.1605, to conduct such operations. U.S. Government departments, agencies, and instrumentalities may also request approval on behalf of subcontractors where the prime contractor has a contract, grant, or cooperative agreement with the U.S. Government department, agency, or instrumentality. An approval request must be made to the FAA in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality of the U.S. Government. The letter must be sent to the Associate Administrator for Aviation Safety (AVS–1), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267–8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons covered under SFAR No. 77, § 91.1605, and/or for multiple flight operations. To the extent known, the letter must identify the person(s) expected to be covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—
• The proposed operation(s), including the nature of the mission being supported;
• The service to be provided by the person(s) covered by the SFAR;
• To the extent known, the specific locations in the ORBB FIR where the proposed operation(s) will be conducted; and
• The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of its proposed operations (
If an approval request includes classified information, requestors may contact Aviation Safety Inspector Will Gonzalez for instructions on submitting it to the FAA. His contact information is listed in the “For Further Information Contact” section of this final rule.
FAA approval of an operation under SFAR No. 77, § 91.1605, does not relieve persons subject to this SFAR of their responsibility to comply with all applicable FAA rules and regulations. Operators of civil aircraft will have to comply with the conditions of their certificate and OpSpecs. Operators will also have to comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation, including, but not limited to, the Transportation Security Regulations issued by the Transportation Security Administration, Department of Homeland Security.
When the FAA approves the request, the FAA's Aviation Safety Organization (AVS) will send an approval letter to the requesting department, agency, or instrumentality informing it that the
(1) Any approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.
(2) Any approval will indicate that the operation is not eligible for coverage under any premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code.
(3) Before any approval takes effect, the operator must submit to the FAA:
(a) A written release of the U.S. Government (including, but not limited to, the United States of America as Insurer) from all damages, claims, and liabilities, including without limitation legal fees and expenses; and
(b) The operator's written agreement to indemnify the U.S. Government (including but not limited to the United States of America, as Insurer) with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising from or related to the approved operations in the ORBB FIR.
The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy issued by the FAA under chapter 443.
(4) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs.
If the proposed operation or operations is or are approved, the FAA will issue OpSpecs authorizing the operation or operations to the certificate holder and will notify the department, agency, or instrumentality that requested FAA approval of such operation(s) of any additional conditions beyond those contained in the approval letter. The requesting department, agency, or instrumentality must have a contract, grant, or cooperative agreement (or its prime contractor must have a subcontract) with the person(s) described in paragraph (a) of SFAR No. 77, § 91.1605, on whose behalf the department, agency, or instrumentality requests FAA approval.
Any operation not conducted under the approval process set forth above must be conducted under an exemption from SFAR No. 77, § 91.1605. A request by any person covered under SFAR No. 77, § 91.1605, for an exemption must comply with 14 CFR part 11, and will require exceptional circumstances beyond those contemplated by the approval process set forth above. In addition to the information required by 14 CFR 11.81, the requestor must describe in its submission to the FAA, at a minimum—
• The proposed operation(s), including the nature of the operation;
• The service to be provided by the person(s) covered by SFAR No. 77, § 91.1605;
• The specific locations in the ORBB FIR where the proposed operation(s) will be conducted; and
• The method by which the operator will obtain current threat information, and an explanation of how the operator will integrate this information into all phases of its proposed operations (
Additionally, the release and agreement to indemnify, as referred to above, will be required as a condition of any exemption issued under SFAR No. 77, § 91.1605.
The FAA recognizes that operations that may be affected by SFAR No. 77, § 91.1605, including this amendment, may be planned for the governments of other countries with the support of the U.S. Government. While these operations will not be permitted through the approval process, the FAA will process exemption requests for such operations on an expedited basis and prior to any private exemption requests.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354), as codified in 5 U.S.C. 601
In conducting these analyses, FAA has determined this final rule has benefits that justify its costs and is a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866, because it raises novel policy issues contemplated under that Executive Order. The rule is also “significant” as defined in DOT's Regulatory Policies and Procedures. The final rule, if adopted, will not have a significant economic impact on a substantial number of small entities, will not create unnecessary obstacles to international trade, and will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector.
Total annual costs to airlines are estimated to be approximately $14 million. The benefits of this final rule are the avoided deaths that might result from a U.S. operator's aircraft being shot down (or otherwise damaged) amidst the armed conflict in Iraq. Since each fatality is valued at $9.2 million, the benefits of this final rule will exceed the costs if just two such deaths are averted.
1. All U.S. air carriers and U.S. commercial operators;
2. All persons exercising the privileges of an airman certificate issued by the FAA, except such persons operating U.S.-registered aircraft for a foreign air carrier; and
3. All operators of aircraft registered in the United States, except where the operator of such aircraft is a foreign air carrier.
• Calendar Year 2013 data.
• Schedule P–10 from Bureau of Transportation Statistics (BTS) to obtain number of employees at a carrier.
• Schedule P–1.2 from BTS to obtain Total Operating Revenues at a carrier.
• U.S. Block Hour Operating Costs by Aircraft Type and Airline, from The Airline Monitor Commercial Aircraft Database.
• Number of flights affected and additional flying time provided by air carriers.
• Value of Statistical Life (VSL) of $9.2 million for 2013.
By prohibiting flights from operating in the ORBB FIR, flights that would overfly the ORBB FIR in the absence of this rule will have to fly additional time to avoid the area. The FAA requested flight and cost information from some U.S. air carriers who indicated to the FAA they would be affected by the prohibition. The FAA received responses from those U.S. air carriers, most of whom reported additional flying time and its associated costs. The additional reported flying time was multiplied by the operating cost per block hour by airline and aircraft type to obtain an estimate of the cost of this final rule. Total annual costs are estimated at $14 million.
This rule imposes no reporting, recordkeeping, or other compliance requirements. The FAA is unaware of any Federal rules that duplicate, overlap, or conflict with this rule.
The benefits of this final rule are the avoided deaths (or other losses) that might have resulted from a U.S. operator's aircraft being shot down (or otherwise damaged) amidst the armed conflict in Iraq. The benefits of this final rule will exceed the costs if just two such deaths do not occur (where each averted fatality is valued at $9.2 million).
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (“RFA”), as codified in 5 U.S.C. 601
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The FAA remains committed to continuously improving civil aviation safety. The FAA finds that this final rule is in the public interest due to the immediate need to address the potential hazard to civil aviation that now exists in the ORBB FIR, as described in this Notice.
The FAA is responsible for the safety of flight in the United States and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA's authority to issue rules on aviation safety is found in title 49, U.S. Code. Subtitle I, section 106(f), describes the authority of the FAA Administrator. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security. This regulation is within the scope of that authority, because it amends SFAR No. 77, § 91.1605, to incorporate the August 8, 2014, NOTAM's prohibition on U.S. civil flight operations at all altitudes in the ORBB FIR due to the potential hazard to U.S. civil aviation posed by the armed conflict in Iraq. This amendment also changes the approval process and adds an expiration date.
The Small Business Administration defines a small entity in the Air Transportation business as having less than 1,500 employees.
The additional reported flying time by operators was multiplied by the operating cost per block hour by small airline and by aircraft type to obtain an estimate of the cost of this final rule. The small entities' operation costs
The Trade Agreements Act of 1979 (Pub. L. 96–39, 19 U.S.C. Chapter 13), as amended, prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA assessed the potential effect of this final rule and determined that it will not create an unnecessary obstacle to the foreign commerce of the United States, because the regulation has a legitimate domestic objective, the protection of safety.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3501
In keeping with U.S. obligations under the Convention on International Civil Aviation (the “Chicago Convention”), it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to this proposed regulation.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (“NEPA”) (Pub. L. 91–190, 42 U.S.C. Chapter 55) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312(f) of FAA Order 1050.1E and involves no extraordinary circumstances.
The FAA has reviewed the implementation of the proposed amendment to SFAR No. 77, § 91.1605, and determined it is categorically excluded from further environmental review according to FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 312(f). The FAA has examined possible extraordinary circumstances and determined that no such circumstances exist. After careful and thorough consideration of the proposed action, the FAA finds that the proposed federal action does not require preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) in accordance with the requirements of NEPA, Council on Environmental Quality regulations, and FAA Order 1050.1E.
The FAA has analyzed this immediately adopted final rule under the principles and criteria of Executive Order 13132, “Federalism.” The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.
The FAA analyzed this immediately adopted final rule under Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609, Promoting International Regulatory Cooperation (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
An electronic copy of a rulemaking document may be obtained by using the Internet—
1. Search the Federal Document Management System (FDMS) Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Publishing Office's Web page at:
Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267–9680.
The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104–121) (set forth as a note to 5 U.S.C. 601), as amended, requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding
Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Freight, Iraq.
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)
(1) All U.S. air carriers and U.S. commercial operators;
(2) All persons exercising the privileges of an airman certificate issued by the FAA, except such persons operating U.S.-registered aircraft for a foreign air carrier; and
(3) All operators of aircraft registered in the United States, except where the operator of such aircraft is a foreign air carrier.
(b)
(c)
(d)
(e)
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule.
This document sets forth amendments to the Customs and Border Protection regulations that implement the preferential tariff treatment and other customs-related provisions of the North American Free Trade Agreement (NAFTA) entered into by the United States, Canada, and Mexico. The amendments reflect technical rectifications to the NAFTA Uniform Regulations agreed upon by the three NAFTA Parties, as well as corrections necessitated by changes to the Harmonized Tariff Schedule of the United States. The conforming amendments are required to maintain the United States' obligations under the NAFTA and to ensure that NAFTA traders operate under a uniform tariff and rules of origin regime. The amendments set forth in this document involve no substantive interpretation of the NAFTA or change in policy.
The corrections are effective July 10, 2015.
Craig T. Clark, Director, Textile and Trade Agreements Division, Office of International Trade, Customs and Border Protection, Tel. (202) 863–6657.
On December 17, 1992, the United States, Canada, and Mexico entered into the North American Free Trade Agreement (NAFTA) which, among other things, provides for preferential duty treatment on goods of those three countries. The North American Free Trade Agreement Implementation Act, Public Law 103–182, 107 Stat. 2057, was signed into law by the United States on December 8, 1993. For purposes of administration of the NAFTA preferential duty provisions, the three countries agreed to the adoption of verbatim NAFTA Rules of Origin Regulations and additional uniform regulatory standards to be followed by each country in promulgating NAFTA implementing regulations under its national law.
The regulations implementing the NAFTA preferential duty and related provisions under United States law are set forth in part 181 of title 19 of the Code of Federal Regulations (19 CFR part 181) which incorporates, in the Appendix, the verbatim NAFTA Rules of Origin Regulations. The NAFTA rules of origin are structured primarily in terms of prescribed changes in tariff classification, with some goods also subject to a content requirement.
On April 9, 2009, the United States Trade Representative, the Canadian
The technical rectifications to the NAFTA Uniform Regulations for Chapter Four and Annex 403.1 do not constitute policy or substantive changes to the NAFTA and have the sole purpose of maintaining consistency between the NAFTA Annexes and each of the signatory countries' tariff laws. The conforming amendments set forth in this document implement these technical rectifications by updating the HTSUS tariff provisions in the Appendix to part 181 of 19 CFR and are necessary to maintain the United States' obligations under the NAFTA and to ensure that NAFTA traders operate under a uniform tariff and rules of origin regime.
To effect the agreed upon numerical and text changes to the NAFTA Rules of Origin Regulations for the United States, technical rectifications are made to the following provisions within the Appendix to 19 CFR part 181:
• Part II, Section 5, subsection (4)(i), pertaining to exceptions to the de minimis rule for non-originating materials that do not undergo, subject to authorization, a required tariff change.
• Part III, Section 6, subsection (6)(d)(iv), pertaining to regional value content and application of the net cost method in certain circumstances.
• Part VI, Section 16, subsection (3), pertaining to exceptions to transshipment rules for certain goods.
• Schedule IV, pertaining to the list of tariff provisions for the purposes of section 9 of the Appendix.
In addition to the technical rectifications trilaterally agreed to by the NAFTA Parties in the 2009 Exchange of Letters, described above, this document makes additional technical corrections to the Schedule IV light-duty automotive tracing list within the Appendix to 19 CFR part 181 to reflect pre-2007 modifications to the HTSUS. As noted above, the HTSUS is periodically updated to reflect systemic revisions to the HS. The periodic revisions to the HTSUS result in certain tariff provisions being added or removed, or certain goods being transferred to different or newly-created tariff provisions. As a result of pre-2007 systemic HTSUS revisions, the existing Schedule IV light-duty automotive tracing list in the Appendix to part 181 contains outdated tariff provisions that are no longer consistent with Annex 403.1 of the NAFTA. This document makes technical corrections to the numerical tariff references in the tracing list so as to conform to the current version of the HTSUS and maintain the United States' obligations under the NAFTA.
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), agencies generally are required to publish a notice of proposed rulemaking in the
Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601
As these amendments to the regulations reflect technical rectifications to the NAFTA agreed to by the United States, Canada, and Mexico, as well as revisions to the Harmonized Tariff Schedule of the United States, they do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.
This document is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions. Accordingly, it is being signed under the authority of 19 CFR 0.1(b)(1).
Administrative practice and procedure, Canada, Customs duties and inspection, Imports, Mexico, Reporting
For the reasons stated above, part 181 of title 19 of the Code of Federal Regulations (19 CFR part 181) is amended as set forth below.
19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 3314.
The revisions read as follows:
(4) * * *
(i) a non-originating material that is used in the production of any non-portable gas stoves or ranges of subheading 7321.11 or 7321.19, subheadings 8415.10, 8415.20 through 8415.83, 8418.10 through 8418.21, household type refrigerators, other than electrical absorption type of subheading 8418.29, subheadings 8418.30 through 8418.40, 8421.12, 8422.11, 8450.11 through 8450.20 and 8451.21 through 8451.29 and tariff items 8479.89.55 (trash compactors) and 8516.60.40 (electric stoves or ranges);
(3) Subsection (1) does not apply with respect to:
(a) a “smart card” of subheading 8523.52, containing a single integrated circuit, where any further production or other operation that that good undergoes outside the territories of the NAFTA countries does not result in a change in the tariff classification of the good to any other subheading;
(b) a good of any of subheadings 8541.10 through 8541.60 or subheadings 8542.31 through 8542.39, where any further production or other operation that that good undergoes outside the territories of the NAFTA countries does not result in a change in the tariff classification of the good to a subheading outside subheadings 8541.10 through 8542.90;
(c) an electronic microassembly of subheading 8543.70, where any further production or other operation that that good undergoes outside the territories of the NAFTA countries does not result in a change in the tariff classification of the good to any other subheading; or
(d) an electronic microassembly of subheading 8548.90, where any further production or other operation that that good undergoes outside the territories of the NAFTA countries does not result in a change in the tariff classification of the good to any other subheading.
Office of Special Education Programs (OSEP), Office of Special Education and Rehabilitative Services, Department of Education.
Final waiver and extension of the project period.
For the nine currently funded Community Parent Resource Centers (CPRCs), the Secretary waives the requirements that generally prohibit project periods exceeding five years and extensions of project periods involving the obligation of additional Federal funds. This waiver and extension of the project period enables these nine CPRCs to receive funding from October 1, 2015, through September 30, 2016. Further, the waiver and extension of the project period mean that we will not announce a new competition or make new awards in fiscal year (FY) 2015.
The waiver and extension of the project period are effective May 11, 2015.
Carmen Sanchez, U.S. Department of Education, 400 Maryland Avenue SW., Room 4057, Potomac Center Plaza, Washington, DC 20202–2600. Telephone: (202) 245–6595.
If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1–800–877–8339.
On March 9, 2015, we published a notice in the
(1) Enable the Secretary to provide additional funds to the currently funded CPRCs for an additional 12-month project period, from October 1, 2015, through September 30, 2016; and
(2) Request comments on the proposed extension of project period and waiver.
There are no substantive differences between the proposed waiver and extension and the final waiver and extension.
In response to our invitation in the notice of proposed waiver and extension of the project period, we did not receive
On May 3, 2010, the Department of Education (Department) published in the
The purpose of CPRCs is to provide underserved parents of children with disabilities in targeted communities—including low-income parents, parents of limited English proficient children, and parents with disabilities—with the training and information they need to enable them to participate cooperatively and effectively in helping their children with disabilities to—
(1) Meet developmental and functional goals, as well as challenging academic achievement standards that have been established for all children; and
(2) Be prepared to lead the most productive, independent adult lives possible.
The CPRCs provide training and information to parents of infants, toddlers, and children, from birth through age 26, with the full range of disabilities described in section 602(3) of IDEA by: (a) Responding to individual requests for information and support from parents of children with disabilities, including parents of children who may be inappropriately identified in their targeted communities; (b) providing training to parents of children with disabilities; (c) supporting parents of children with disabilities, as needed, such as helping them to prepare for individualized education program or individualized family service plan meetings; and (d) maintaining a Web site and social media presence, as appropriate, to inform parents in their targeted communities of appropriate resources.
Based on the selection criteria in the 2010 NIA, the Department made awards for a period of 60 months each to 10 organizations, nine of which have received FY 2014 continuation funding: Fiesta Educativa in California; Parent to Parent of Miami, Inc. in Florida; Agenda for Children/Pyramid Parent Training in Louisiana; Urban PRIDE in Massachusetts; SPEAKS Education, Inc. in Michigan; Education for Parents of Indian Children with Special Needs in New Mexico; Palau Parents Empowered in Palau; Philadelphia HUNE, Inc. in Pennsylvania; and Children's Disabilities Information Coalition in Texas.
The 2010 CPRC cohort's current project period is scheduled to end on September 30, 2015. We do not believe that it would be in the public interest to run a competition for new CPRCs this year because the Department is in the process of changing the competition schedule for the PTI Program to make better use of Department resources.
Under the proposed CPRC competition schedule, instead of holding three competitions over five years, each for 10 CPRCs, we would hold one competition for 30 CPRCs that will each have a project period of up to five years. We propose to hold this competition and fund 30 CPRCs in FY 2016. We also have concluded that it would be contrary to the public interest to provide services to fewer underserved families in order to change the Department's competition schedule.
For these reasons, the Secretary waives the requirements in 34 CFR 75.250, which prohibit project periods exceeding five years, as well as the requirements in 34 CFR 75.261(a) and (c)(2), which allow the extension of a project period only if the extension does not involve the obligation of additional Federal funds. The waiver allows the Department to issue FY 2015 continuation awards of $100,000 to each of the nine centers in the FY 2010 cohort.
Any activities carried out during the 12-month period of this continuation award will have to be consistent with, or a logical extension of, the scope, goals, and objectives of the grantee's application as approved in the FY 2010 CPRC competition. The requirements applicable to continuation awards for this competition set forth in the 2010 NIA and the requirements in 34 CFR 75.253 will apply to any continuation awards sought by the current CPRC grantees. We will base our decisions regarding continuation awards on the program narratives, budgets, budget narratives, and program performance reports submitted by the current grantees, and the requirements in 34 CFR 75.253.
The Administrative Procedure Act requires that a substantive rule must be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). We received no substantive comments on the proposed waiver and extension of project period, and we have not made any substantive changes to the proposed waiver and extension of project period. The Secretary has made a determination to waive the delayed effective date to ensure there is no lapse in the parent training and information services currently provided by the CPRCs.
The Secretary certifies that this waiver and extension of the project period will not have a significant economic impact on a substantial number of small entities.
The only entities that will be affected by this waiver and extension of the project period are the current grantees receiving Federal funds and any other potential applicants.
The Secretary certifies that this waiver and final extension will not have a significant economic impact on these entities because the extension of existing project periods imposes minimal compliance costs, and the activities required to support the additional year of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.
This notice of final waiver and extension of the project period does not contain any information collection requirements.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Final rule.
We, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the Services), are amending the incidental take statement provisions of the implementing regulations for section 7 of the Endangered Species Act of 1973, as amended (ESA). The two primary purposes of the amendments are to address the use of surrogates to express the amount or extent of anticipated incidental take and to refine the basis for development of incidental take statements for programmatic actions. These changes are intended to improve the clarity and effectiveness of incidental take statements. The Services believe these regulatory changes are a reasonable exercise of their discretion in interpreting particularly challenging aspects of section 7 of the ESA related to incidental take statements.
This final rule is effective on June 10, 2015.
This final rule is available on the internet at
Craig Aubrey, Chief, Division of Environmental Review, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240 (telephone: 703–358–2171); or Cathryn E. Tortorici, Chief, Endangered Species Act Interagency Cooperation Division, Office of Protected Resources, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, Washington, DC (telephone: 301–427–8400). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
Section 9 of the ESA prohibits the take of fish or wildlife species listed as endangered with certain exceptions. Pursuant to section 4(d) of the ESA, the Services may prohibit the take of fish or wildlife species listed as threatened. Under section 3 of the ESA, the term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Section 7 of the ESA provides for the exemption of incidental take of listed fish or wildlife species caused by Federal agency actions that the Services have found to be consistent with the provisions of section 7(a)(2). The Services jointly administer the ESA via regulations set forth in the Code of Federal Regulations (CFR). This rule deals with regulations found in title 50 of the CFR at part 402.
Under 50 CFR 402.14, Federal agencies must review their actions at the earliest possible time to determine whether any action may affect species listed under the ESA or their designated critical habitat. If such a determination is made, formal consultation with the appropriate Service is required, unless one of the exceptions outlined at § 402.14(b) applies. Within 45 days after concluding formal consultation, the Service delivers a biological opinion to the Federal agency and any applicant. The biological opinion states the opinion of the Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of their critical habitat. If a proposed action is reasonably certain to cause incidental take of a listed species, the Services, under 50 CFR 402.14(i), issue along with the biological opinion an incidental take statement that specifies, among other requirements: The impact of such incidental taking on the listed species; measures considered necessary or appropriate to minimize the impact of such take; terms and conditions (including reporting requirements) that implement the specified measures; and procedures to be used for handling or disposing of individuals that are taken.
The current regulations at § 402.14(i)(1)(i) require the Services to express the impact of such incidental taking of the species in terms of amount or extent. The preamble to the final rule that set forth the current regulations discusses the use of a precise number of individuals or a description of the land or marine area affected to express the amount or extent of anticipated take, respectively (51 FR 19954, June 3, 1986).
Court decisions rendered over the last decade regarding the adequacy of incidental take statements have prompted the Services to clarify two aspects of the regulations addressing incidental take statements: (1) The use of surrogates to express the amount or extent of anticipated incidental take, including circumstances where project impacts to the surrogate are coextensive with at least one aspect of the project's scope; and (2) the circumstances under which providing an incidental take statement with a biological opinion on a programmatic action is appropriate.
Through this final rule, the Services are establishing prospective standards regarding incidental take statements. Consistent with the regulatory language set forth in the proposed rule, we are clarifying that the Services formulate an incidental take statement if such take is reasonably certain to occur. Nothing in
On September 4, 2013, the Services published a proposed rule addressing the incidental take statement provisions of the implementing regulations for section 7(a)(2) of the ESA (78 FR 54437). The proposed rule addressed the use of surrogate take indicators and issuance of an incidental take statement for programmatic actions. The proposed rule requested that all interested parties submit written comments on the proposal by November 4, 2013. The Services also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. The Services received comments from 64 individuals and organizations.
For surrogates, the proposed rule endorsed the use of surrogates to express the amount or extent of anticipated incidental take and set forth three requirements for their use in an incidental take statement. This final rule adopts the approach of the proposed rule for surrogates with no significant changes.
For programmatic actions, the proposed rule addressed the subset of Federal actions that are designed to provide a framework for the development of future, site-specific actions that are authorized, funded, or carried out and subject to the requirements of section 7 at a later time. Development of incidental take statements for “framework” programmatic actions is problematic because they generally lack the site-specific details of where, when, and how listed species will be affected by the program. The Services rely on such information to inform the amount or extent of take in the incidental take statement that serves as a trigger for reinitiation of consultation pursuant to the requirements of 50 CFR 402.16(a).
The Services proposed to distinguish programmatic actions and programmatic incidental take statements for framework actions in the regulations to clarify the basis for development of an incidental take statement for this type of Federal program. The proposed rule stated that the key distinguishing characteristics of programmatic actions for purposes of the rule are: (1) They provide the framework for future, site-specific actions that are subject to section 7 consultations and incidental take statements, but they do not authorize, fund, or carry out those future site-specific actions; and (2) they do not include sufficient site-specific information to inform an assessment of where, when, and how listed species are likely to be affected by the program. In lieu of quantifying a traditional amount or extent of take, the Services proposed to develop programmatic incidental take statements that anticipate an unquantifiable amount or extent of take at the programmatic scale in recognition that subsequent site-specific actions authorized, funded, or carried out under the programmatic action will be subject to subsequent section 7 consultation and incidental take statements, as appropriate. The Services proposed to express reinitiation triggers as reasonable and prudent measures that adopt either specific provisions of the proposed programmatic action, such as spatial or timing restrictions, to limit the impacts of the program on listed species or similar restrictions identified by the Services that would function to minimize the impacts of anticipated take on listed species at the program level.
After further consideration of relevant court rulings, the Services' national section 7 policy, and public comments, the Services are revising the approach described in the proposed rule to address incidental take statements for programmatic actions. The revised approach relies more appropriately on the distinction that a framework programmatic action only establishes a framework for the development of specific future action(s) but does not authorize any future action(s). Under those particular circumstances, the programmatic action in and of itself does not result in incidental take of listed species. Under this final rule, the Services are defining the term
The approach taken in the proposed rule was predicated on the assumption that a framework programmatic action could cause take. Given the particular nature of framework programmatic actions discussed above, the Services have altered their view and now affirm that a framework programmatic action in and of itself does not result in incidental take of listed species. This altered view as to incidental take for framework programmatic actions, however, does not undermine the duty to consult under section 7(a)(2) of the ESA. Framework programmatic actions will trigger formal consultation if the action may affect listed species or their designated critical habitat. Additionally, the Services also reconsidered the approach taken in the proposed rule because an incidental take statement for a framework programmatic action may not be practical to implement. In particular, the Services are concerned that it may be difficult to identify measures at a program scale that are specific enough to serve as valid take-related reinitiation triggers in an incidental take statement given that such measures are often described in the proposed program in a qualitative rather than a quantitative manner. Additionally, the Services are concerned that program-based measures may not serve as consistently effective reinitiation triggers because reinitiation would occur only when the action agency deviated from the terms of its own program. The additional burden of monitoring and reporting requirements for such measures in many instances would outweigh the limited functionality such measures would provide in terms of minimizing the impacts of anticipated take. The limited functionality of this approach is also raised by the fact that a similar reinitiation trigger for changes to the proposed action is already set forth in the existing regulations at 50 CFR 402.16(c) where discretionary Federal involvement or control over the action has been retained or is authorized by law.
The proposed rule set forth a definition of
The Services acknowledge congressional preference for expressing the impacts of take in incidental take statements in terms of a numerical limitation with respect to individuals of the listed species. However, Congress also recognized that a numerical value would not always be available and intended that such numbers be established only where possible. H.R. Rep. No. 97–567, at 27 (1982). The preamble to the final rule that set forth the current regulations also acknowledges that exact numerical limits on the amount of anticipated incidental take may be difficult to determine and the Services may instead specify the level of anticipated take in terms of the extent of the land or marine area that may be affected (51 FR 19926 [19953–19954]; June 3, 1986). In fact, as the Services explained in the preamble to that rule, the use of descriptions of extent of take can be more appropriate than the use of numerical amounts “because for some species loss of habitat resulting in death or injury to individuals may be more deleterious than the direct loss of a certain number of individuals” (51 FR at 19954).
Over the last 25 years of developing incidental take statements, the Services have found that, in many cases, the biology of the listed species or the nature of the proposed action makes it impractical to detect or monitor take of individuals of the listed species. In those situations, evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species.
The courts also have recognized that it is not always practicable to establish the precise number of individuals of the listed species that will be taken and that “surrogate” measures are acceptable to establish the impact of take on the species if there is a link between the surrogate and take.
Take can be expressed also as a change in habitat characteristics affecting the species (
For example, under a hypothetical Clean Water Act permit, the U.S. Army Corps of Engineers would authorize the fill of a quarter-acre of wetlands composed of three vernal pools occupied by the threatened vernal pool fairy shrimp
The Ninth Circuit Court's holding in
In addition to discussing the use of habitat surrogates for expressing the extent of anticipated take, the Services' Section 7 Handbook also discusses (on page 4–47) the use of impacts to non-listed species as a surrogate for expressing the amount of anticipated take of a listed species:
In some situations, the species itself or the effect on the species may be difficult to detect. However, some detectable measure of effect should be provided. For instance, the relative occurrence of the species in the local community may be sufficiently predictable that impacts on the community (usually surrogate species in the community) serve as a measure of take,
We are amending § 402.14(i)(1)(i) of the regulations to clarify that surrogates may be used to express the amount or extent of anticipated take, provided the biological opinion or the incidental take statement: (1) Describes the causal link between the surrogate and take of the listed species; (2) describes why it is not practical to express the amount of anticipated take or to monitor take-related impacts in terms of individuals of the listed species; and (3) sets a clear standard for determining when the amount or extent of the taking has been exceeded. Such flexibility may be
The section 7 regulatory definition of Federal “action” includes Federal agency programs.
As discussed above, the Services are modifying the section 7 regulations to address incidental take statements for framework programmatic actions in a way that revises the approach described in the proposed rule. The revised approach reflects our further consideration of relevant court rulings, the Services' national section 7 policy, and public comments on the proposed rule. Under this final rule, we are establishing regulatory provisions specific to framework programmatic actions that require section 7 consultation and adopt a framework for the development of future actions but do not authorize those future actions. This rule change will clarify the circumstances under which the Services will not provide an incidental take statement with a biological opinion addressing a framework programmatic action because adoption of a framework will not itself result in the take of listed species. Any take resulting from subsequent actions that proceed under the framework programmatic action will be subject to section 7 consultation and an incidental take statement, as appropriate. However, this regulatory change does not imply that section 7 consultation is required for a framework programmatic action that has no effect on listed species or critical habitat. The Services believe that this approach is fully consistent with the statutory purposes of an incidental take statement and the language of section 7 of the ESA.
As an initial and elementary matter, section 7 of the ESA directs the provision of an incidental take statement only where take is anticipated to result from the proposed Federal agency action. If take is not anticipated, then logically no incidental take statement would be provided.
To read the statute otherwise to require the provision of incidental take statements for framework programmatic actions would not meaningfully further the statutory purposes of incidental take statements. The primary purpose of an incidental take statement is, when consistent with protection of the species, to exempt the incidental take of listed species that is anticipated to result from the agency action and impose conditions on that exemption intended to minimize the impacts of such take for the species' benefit.
Due to the nature of the action, no take results when a framework programmatic action is adopted. Adoption of the program itself, by definition, only establishes a framework for later action. ESA consultations will occur when subsequent actions may affect listed species and are consistent with the terms of the authorized program. If incidental take is reasonably certain to occur and the proposed action is compliant with the requirements of section 7(a)(2), then an action-specific incidental take statement will be provided that ensures any incidental take from the subsequent action under the program is addressed. The primary purpose of an incidental take statement (exemption of take and minimization of take-related impacts for the benefit of the listed species) would also not be advanced, because any incidental take statement provided at the program level and the resulting exemption would necessarily be incomplete since a second consultation and an action-specific incidental take statement still need to be provided when later actions are authorized under the program. Additionally, the level of detail available at the program (framework) level is often insufficient to identify with particularity where, when, and how the program will affect listed species. Without such detail, it is difficult to write sufficiently specific and meaningful terms and conditions intended to minimize the impact of the taking for the benefit of the listed species. Given this lack of specificity and information, providing the amount (
As discussed above, the modified approach for addressing incidental take statements for framework programmatic actions advances the policy goals of the Services to focus the provision of incidental take statements at the action level where such take will result. Consistent with that focus, if a decision adopting a framework also includes decisions authorizing actions (that is, actions for which no additional authorization will be necessary), then an incidental take statement would be necessary for those actions, provided the action is compliant with section 7(a)(2) and take is reasonably certain to occur. The Services have included recognition of this circumstance in the regulatory definition of the term “mixed programmatic action” in this final rule. For other types of programmatic actions not falling within the definitions provided in the rule, incidental take statements will be formulated by the Services to accompany biological opinions where incidental take is reasonably certain to occur and the proposed Federal action is compliant with the requirements of section 7(a)(2).
If, as discussed above, an incidental take statement is not provided with a biological opinion on a framework programmatic action on the basis that no take will result at the program stage, questions arise about how the associated biological opinion can nevertheless address indirect effects of the program's implementation. Put another way, if indirect effects amount to killing, harming, harassing, etc., how can no take occur? The explanation turns on the differing purposes of a biological
Unlike the purposes of an incidental take statement, the analysis in a biological opinion is used to determine whether an agency action is likely to jeopardize a listed species or adversely modify designated critical habitat.
Distinctions between “effects” and “take” at the programmatic scale support analyzing potential program implementation as part of the “effects” of the framework programmatic action but not providing an incidental take statement at the program level. The ESA itself uses different terms in specifying the contents of a biological opinion for jeopardy purposes (“detail[] how the agency action affects the species”) and an incidental take statement (focused on “take”).
For purposes of a biological opinion on a framework programmatic action, the Services typically evaluate the potential implementation of the program as “effects of the action.” The Services can legitimately draw a distinction between “effects” of the program and the purpose of a biological opinion on that program and “take” and the purpose of an incidental take statement in the subsequent consultation on later actions carried out under the program. Given that no actions that would lead to take are authorized when the framework program itself is adopted, the Services' position is that take is not anticipated from the adoption of the program in and of itself. As a result, the Services find that it is appropriate not to provide an incidental take statement at the program level and to address take during subsequent steps when specific actions are authorized under the program and subsequent consultation occurs. As mentioned above, if, however, a decision adopting a program framework also includes decisions authorizing actions that will not be subject to further Federal authorization or section 7 consultation and take is reasonably certain to occur, then an incidental take statement would be necessary for those portions of the programmatic action that will result in incidental take. The Services have included recognition of this circumstance in the regulatory definition of the term “mixed programmatic action” in this final rule.
Action agencies often seek to engage in consultation on programmatic actions to gain efficiencies in the section 7 consultation process. The Services anticipate this rule will afford action agencies and the Services with substantial flexibility to efficiently and effectively conduct consultation, while ensuring compliance with responsibilities under the ESA. For example, if an action agency designs a programmatic action and provides adequate information to inform the development of a biological opinion with an incidental take statement covering future actions implemented under the program, the Services anticipate they will be able to provide such an opinion and incidental take statement to the action agency under this rule. Action agencies may request assistance from the Services to help determine how a program could best be addressed pursuant to this rule. The Services also encourage action agencies to consider how any section 7 consultation on a programmatic action is consistent with the action agency's other environmental review processes.
In this final rule, the Services are clarifying that the standard for issuance of an incidental take statement is “reasonable certainty” that take will occur. The Services are amending 50 CFR 402.14(g)(7) to implement this clarification. The Services do not consider this change to be substantive, but rather a clarification of the existing standard for issuance of an incidental take statement.
Expressly including the standard of reasonable certainty in this final rule at 50 CFR 402.14(g)(7) is consistent with the ESA, existing section 7 regulations, the Services' current practice, the Services' Section 7 Handbook, and applicable case law. The three requirements that must be met under section 7 of the ESA before an incidental take statement is issued implicitly suggest that a finding of take is required.
As for the regulations, the section 7 regulations expressly apply the “reasonable certainty” standard to “indirect effects” that are defined as part of the “effects of the action.”
The Services' Section 7 Handbook, issued in 1998, identifies a similar standard of “reasonably likely” to determine when to issue an incidental take statement. The Handbook predates the Ninth Circuit's decision in
The language currently in 50 CFR 402.14(g)(7) is not inconsistent with the Services' application of the “reasonable certainty” standard. This provision requires the Services to “formulate a statement concerning incidental take, if such taking
For all the reasons discussed above, the “reasonable certainty” standard governs the threshold issue of whether to formulate an incidental take statement. Once the Services determine that incidental take is reasonably certain to occur, then the specific provisions of 50 CFR 402.14(i) govern (
As a practical matter, application of the “reasonable certainty” standard is done in the following sequential manner in light of the best available scientific and commercial data to determine if incidental take is anticipated: (1) A determination is made regarding whether a listed species is present within the area affected by the proposed Federal action; (2) if so, then a determination is made regarding whether the listed species would be exposed to stressors caused by the proposed action (
In response to public comments and internal review, the Services made the following changes compared to the proposed rule:
The term and definition for
The approach relied upon in this final rule for programmatic actions is fully consistent with the identified purpose of the proposed rule, which, among other things, was to clarify development of incidental take statements for programmatic actions. While this approach modifies the approach of the proposed rule for programmatic actions, the public was specifically asked for comment on whether the approach relied upon in this final rule would be more appropriate to address the issue of incidental take statements for programmatic actions.
As discussed above, the Services are modifying the text in § 402.14(g)(7) to clarify that “reasonable certainty” is the standard that applies to determine when the Services issue an incidental take statement. The proposed rule did not propose this specific change, but the proposed rule definition of
The proposed rule included adding a sentence to § 402.14(i)(3) intended to clarify that monitoring project impacts to a surrogate meets the requirement for monitoring the impacts of incidental take on the listed species. Upon further consideration, the Services concluded this sentence is unnecessary as the requirement is already reflected in the existing regulatory language.
As noted above, the Services received a total of 64 public comments in response to the proposed rule. For the
Congress included the incidental take statement provisions in the 1982 amendments to the ESA to resolve the situation in which a Federal action agency or an applicant has been advised by the Services that the proposed action is not likely to jeopardize the continued existence of listed species but is anticipated to result in the taking of listed species incidental to that action, which would otherwise violate the take prohibition of section 9.
The ESA is sufficiently ambiguous to allow the Services to adopt a statutory interpretation that supports not providing an incidental take statement for a framework programmatic action, as appropriate.
Given the step-wise nature of such programmatic actions, sections 7(b)(4) and 7(o)(2) of the ESA can be read to support not providing an incidental take statement at the programmatic level under these circumstances. If incidental take is anticipated to result at this stage, section 7(b)(4) appears to require the Services to issue an incidental take statement (“the Secretary
As defined in this rule and discussed above, a mixed programmatic action may include authorization for actions that will not be subject to further Federal authorization or section 7 consultation and are reasonably certain to cause take. Under those circumstances, an incidental take statement would be necessary for that portion of the programmatic action. The Services have included recognition of this circumstance in the regulatory definition of
Section 7(o)(2) of the ESA supports the Services' interpretation because it appears to contemplate only a single incidental take statement to fully exempt take. The language of section 7(o)(2) provides “any taking that is in compliance with the terms and conditions [of an incidental take statement] . . . shall not be considered to be a prohibited taking.” (16 U.S.C. 1536(o)(2)). If the Services were to provide an incidental take statement for a framework programmatic action where any take will result only from future
Additionally, as discussed above, the language of the ESA leaves sufficient room to draw a distinction between “effects” and “take” at the programmatic scale, and thus to allow for an analysis of program implementation as part of the “effects” of a framework programmatic action but not to provide an incidental take statement at the program (framework) level. The ESA itself uses different terms in specifying the contents of a biological opinion for jeopardy purposes (“detail how the agency action
Likewise, the use of surrogates in an incidental take statement is an exercise of the Services' reasonable discretion in carrying out their responsibilities under section 7 of the ESA. The statutory language associated with reinitiation triggers is quite general, providing that as part of an incidental take statement the Services shall “specif[y] the impact of such incidental taking on the species” (16 U.S.C. 1536(b)(4)(i)). This language leaves substantial room for statutory interpretation on the part of the Services, including the use of surrogates.
The legislative history of the 1982 amendments to the ESA, which added the incidental take statement provisions, reflects congressional support for the use of surrogates as well. Congress recognized that a numerical value would not always be available and intended that such numbers be established only where possible (H.R. Rep. No. 97–567, at 27).
In practice, over the last 25 years of developing incidental take statements, the Services have found that in many cases the biology of the listed species or the nature of the proposed action makes it impractical to detect or monitor take of individuals. In those situations, evaluating impacts to a surrogate such as habitat, ecological conditions, or similar affected species may be the most reasonable and meaningful measure of assessing take of listed species and is fully consistent with the language and purposes of the ESA.
The courts have also recognized that it is not always practicable to establish the precise number of individuals that will be taken. Thus under a
The Services have determined that this final rule will not result in any reasonably foreseeable effects to the environment and, therefore, that further NEPA review is not required. First, the rule codifies existing practices and case law with respect to use of surrogates and this codification of the status quo does not result in foreseeable environmental effects. Second, the timing of issuance of the incidental take statement will not change the substantive protections afforded to species and therefore the Service's regulations do not change the on-the-ground effects of incidental take statements. Finally, the update to the regulations does not result in environmental impacts because it merely clarifies the Services' longstanding position since the Ninth Circuit's decision in
To the extent the rule would result in reasonably foreseeable environmental effects, the Services have determined that the rule is categorically excluded from further NEPA review and that no extraordinary circumstances are present. The rule qualifies for two categorical exclusions listed at 43 CFR 46.210(i) and NOAA Administrative Order (NAO) 216–6, section 6.03c.3(i). Among other things, the exclusions apply to regulations that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case by case. 43 CFR 46.210.
First, the rule is of a legal, technical, or procedural nature. For surrogates, the rule clarifies when the Services may use a surrogate to establish the amount or extent of take. This clarification is consistent with the Services' existing national policy and applicable case law. For programmatic actions, the rule clarifies the procedural timing of when the Services will issue an incidental take statement. It does not alter substantive protections. Finally, the rule codifies the Services' longstanding interpretation of their existing regulations post
Second, any potential impacts of this rule are too broad, speculative, and conjectural to lend themselves to meaningful analysis and will be examined as part of any NEPA analysis conducted by the Federal action agency.
Additionally, none of the extraordinary circumstances listed at 43 CFR 46.215 and NAO 216–6 section 5.05c are triggered by the final rule. This rule does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats for the reasons identified above.
In making this determination, the Services have considered whether adequate opportunities for public comment on the rule, including its potential environmental effects, have been provided. Our review of the proposed rule and the comments received on that proposal demonstrated that preparation of an Environmental Assessment is not necessary to obtain public input on this rule. Commentators had the opportunity to weigh in on the various aspects of this final rule and the final rule has been shaped, in part, by those comments. We conclude that preparation of an Environmental Assessment would not result in meaningful additional opportunities for comment, nor would it be likely to provide the Services with significant additional information to guide their decisionmaking process.
In general, the standards for incidental take statements in the current regulations at 50 CFR 402.14(i) continue to apply as well as the standards associated with national policy for incidental take statements found on pages 4–43 through 4–58 of the Services' Section 7 Handbook (Services 1998).
In accordance with those standards and consistent with governing case law and our regulations, the Services' general approach to incidental take statements is summarized below:
Take is specifically defined in the regulations. For example, the terms “harm” and “harass” have specific meanings, and they are not synonymous (
If a proposed action includes a reasonable certainty of take, the biological opinion needs to make a rational connection between the effects of the action and the take considered in the incidental take statement. The terms and conditions must have a rational connection to the taking of a species and must give clear guidance to the recipient of the incidental take statement of what is expected and how the conditions (including those for monitoring of take-related impacts caused by the action) can be met.
It should also be noted that, in many cases, the surrogate used by the Services in an incidental take statement is habitat or a component of the habitat of the listed species. In those situations, the science related to the habitat requirements and behavior of the listed species informs the analytical basis for findings by the Services that a proposed action is reasonably certain to cause take of the listed species and establishes a causal link between effects to habitat and take of the listed species. For these reasons, quantifying and monitoring take impacts via project effects to the habitat of the listed species is a scientifically credible and practical approach for expressing and monitoring the anticipated level of take for situations where use of a surrogate meets the criteria set forth in this rule. In those instances where insufficient information exists to confirm the causal link, the surrogate would not meet the standard for its use in an incidental take statement. As noted above, the Services can request additional information on such a link in the “Conservation Recommendations” section of a biological opinion (
The Services intend to prepare implementation guidance for the use of surrogates to supplement the discussion in the Services' Section 7 Handbook and will consider the recommendations provided in public comments as well as in a recent commentary by Murphy and Weiland (2014) on our proposed rule.
Executive Order 12866 provides that the Office of Information and Regulatory
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601
Incidental take statements describe the amount or extent of incidental take that is anticipated to occur when a Federal action is implemented. The incidental take statement conveys an exemption from the ESA's take prohibitions provided that the action agency (and any applicant) complies with the terms and conditions of the incidental take statement. Terms and conditions cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes (50 CFR 402.14(i)(2)). The regulatory changes addressed in this rule will neither expand nor contract the reach of terms and conditions of an incidental take statement. As such, we foresee no economic effects from implementation of this final rule.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This final rule will not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502
(b) This rule will not produce a Federal mandate of $100 million or greater in any year (
In accordance with E.O. 12630, we have determined that the final rule does not have significant takings implications. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule would substantially advance a legitimate government interest (conservation and recovery of listed species) and would not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with E.O. 13132, we have considered whether this final rule has significant Federalism effects and have determined that a Federalism assessment is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism Assessment under the provisions of E.O. 13132.
This final rule will not unduly burden the judicial system and meets the applicable standards provided in sections (3)(a) and (3)(b)(2) of E.O. 12988.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with affected Federally recognized Tribes on a government-to-government basis. We have determined that there are no tribal lands affected by this rule, and, therefore, no such communications were made.
This final rule does not contain collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Services have determined that this final rule will not result in any reasonably foreseeable effects to the environment and, therefore, that further NEPA review is not required. First, the rule codifies existing practices and case law with respect to use of surrogates and this codification of the status quo does not result in foreseeable environmental effects. Second, the timing of issuance of the incidental take statement will not change the substantive protections afforded to species and therefore the Service's regulations do not change the on-the-ground effects of incidental take statements. Finally, the update to the
To the extent the rule would result in reasonably foreseeable environmental effects, the Services have determined that the rule is categorically excluded from further NEPA review and that no extraordinary circumstances are present. The rule qualifies for two categorical exclusions listed at 43 CFR 46.210(i) and NOAA Administrative Order (NAO) 216–6, section 6.03c.3(i). Among other things, the exclusions apply to regulations that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case by case. 43 CFR 46.210.
First, the rule is of a legal, technical, or procedural nature. For surrogates, the rule clarifies when the Services may use a surrogate to establish the amount or extent of take. This clarification is consistent with the Services' existing national policy and applicable case law. For programmatic actions, the rule clarifies the procedural timing of when the Services will issue an incidental take statement. It does not alter substantive protections. Finally, the rule codifies the Services' longstanding interpretation of their existing regulations post
Second, any potential impacts of this rule are too broad, speculative, and conjectural to lend themselves to meaningful analysis and will be examined as part of any NEPA analysis conducted by the Federal action agency. As explained above, the changes in the rule generally constitute clarifications that are consistent with existing practices as well as case law. As such, it would be speculative to try to analyze the effects of the codification of these practices. Furthermore, these changes apply to the nationwide implementation of section 7 consultations, which take place in a wide variety of contexts, for various activities, for and with numerous action agencies. This application allows analysis only at the broadest level and would not permit meaningful analysis. Furthermore, before any action is taken, the responsible action agency will be required to conduct any necessary NEPA analyses, including impacts to listed species and critical habitat. For these reasons, the second categorical exclusion applies to this rule.
Additionally, none of the extraordinary circumstances listed at 43 CFR 46.215 and NAO 216–6 section 5.05c are triggered by the final rule. This rule does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats for the reasons identified above.
In making this determination, the Services have considered whether adequate opportunities for public comment on the rule, including its potential environmental effects, have been provided. Our review of the proposed rule and the comments received on that proposal demonstrated that preparation of an Environmental Assessment is not necessary to obtain public input on this rule. Commentators had the opportunity to weigh in on the various aspects of this final rule and the final rule has been shaped, in part, by those comments. We conclude that preparation of an Environmental Assessment would not result in meaningful additional opportunities for comment, nor would it be likely to provide the Services with significant additional information to guide their decisionmaking process.
E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Because this action is not a significant energy action, no Statement of Energy Effects is required.
We are taking this action under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Endangered and threatened wildlife, Fish, Intergovernmental relations, Plants (agriculture).
Accordingly, we amend subpart B of part 402, subchapter A of chapter IV, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1531
The revisions and additions read as follows:
(g) * * *
(7) Formulate a statement concerning incidental take, if such take is reasonably certain to occur.
(i) * * *
(1) * * *
(i) Specifies the impact,
(3) * * * The reporting requirements will be established in accordance with 50 CFR 13.45 and 18.27 for FWS and 50 CFR 216.105 and 222.301(h) for NMFS.
(6) For a framework programmatic action, an incidental take statement is not required at the programmatic level; any incidental take resulting from any action subsequently authorized, funded, or carried out under the program will be addressed in subsequent section 7 consultation, as appropriate. For a mixed programmatic action, an incidental take statement is required at the programmatic level only for those program actions that are reasonably certain to cause take and are not subject to further section 7 consultation.
Food and Nutrition Service, USDA.
Proposed rule.
In accordance with provisions of the Healthy, Hunger-Free Kids Act of 2010, this proposed rule would revise the State agency's administrative review process to establish a unified accountability system designed to ensure that participating school food authorities comply with the National School Lunch Program and School Breakfast Program requirements. The proposed administrative review process would include new procedures, retain key existing requirements from the Coordinated Review Effort and the School Meals Initiative, provide new review flexibilities and efficiencies for State agencies, and simplify fiscal action procedures. In addition to the new administrative review process, this rule proposes to require State agencies to report and publicly post school food authorities' administrative review results. These proposed changes are expected to strengthen program integrity through a more robust, effective, and transparent process for monitoring school nutrition program operations.
To be assured of consideration, written comments on this proposed rule must be received by July 10, 2015.
The Food and Nutrition Service (FNS), USDA, invites interested persons to submit written comments on this proposed rule. Comments must be submitted through one of the following methods:
•
•
Comments received by other methods will not be accepted. All comments received by the methods listed above will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the comments publicly available on the Internet via
Lynn Rodgers-Kuperman, Child Nutrition Monitoring and Operations Support Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302; telephone: (703) 605–3223.
Federally supported school nutrition programs are operated each school day in 54 States, by more than 100,000 schools and Residential Child Care Institutions. Ensuring that the programs are being carried out in the manner prescribed in statute and regulation is a key administrative responsibility at every level. Federal, State and local program staff share in the responsibility to ensure that all aspects of the programs are conducted with integrity and that taxpayer dollars are being used as intended.
Improving program integrity and reducing improper payments has been a long-standing priority for the Department of Agriculture (USDA). Periodic evaluations of program errors, including the Access, Participation, Eligibility and Certification (APEC) studies, show that improper payments result from errors made in the processes used to determine eligibility for free or reduced price meals, as well as from errors made during daily program operations and meal service. USDA and its State agency partners have invested significant effort in system improvements and process reforms over the last several years that are expected to improve integrity and deliver long-term reductions in error rates. These efforts include on-going technical assistance and implementation of reforms made by Public Law 111–296, the Healthy, Hunger-Free Kids Act of 2010 (HHFKA). Along with provisions aimed at improving program access and healthier school nutrition environments, HHFKA reforms support program integrity through strengthening the use of direct certification, providing for community eligibility, establishing professional standards for school nutrition directors and staff, targeting a second review of applications in districts with high rates of application processing errors, and other provisions. USDA has already implemented the majority of these provisions through separate rulemaking. USDA has also established a new Office of Program Integrity for Child Nutrition Programs within the Food and Nutrition Service.
State agencies that administer the school meal programs play a primary role in ensuring School Food Authorities (SFAs) are properly operating the programs. In addition to training and technical assistance, State agencies are responsible for regularly monitoring SFA operations.
Nearly 25 years ago, in 1991 and 1992, USDA established regulations in 7 CFR 210.18 for an administrative review process to ensure SFAs complied with National School Lunch Program (NSLP) requirements. The process, the Coordinated Review Effort (CRE), required State agencies to conduct on-site administrative reviews of SFAs once every five years, and covered critical and general areas of review. The CRE review focused primarily on benefit eligibility, meal counting and claiming procedures, meal pattern and other general areas of compliance.
In 1995, State agencies began to evaluate the nutritional quality of school meals under USDA's School Meals Initiative (SMI). A key component of the SMI review was the State agency's nutrient analysis of the weekly school meals to determine compliance with Recommended Dietary Allowances for protein, calcium, iron and vitamins A and C; recommended minimum calorie levels; and the Dietary Guidelines for Americans.
More recently, section 207 of the HHFKA amended section 22 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1769c, to make five changes to the administrative review requirements. The first three were implemented through the final rule,
This rule proposes to revise the administrative review requirements in 7 CFR 210.18 to implement the remaining two statutory provisions from section 207 of HHFKA, requiring that:
1. The administrative review process be a unified accountability system in which schools within an SFA are selected for review based on criteria established by the Secretary; and
2. State agencies report the final results of reviews, and post them or otherwise make them available to the public.
This proposed rule largely reflects the updated administrative review process developed by the School Meals Administrative Review Reinvention Team (SMARRT), a 26-member team consisting of staff from Food and Nutrition Service (FNS) Headquarters and the seven Regional Offices, and State Agency staff from Kansas, Michigan, New York, North Carolina, Oregon, Pennsylvania and Texas (representing each of the FNS Regions). FNS assembled the team to carry out HHFKA's mandate for a unified accountability system. The group worked together for one year to develop a simplified, unified monitoring process that includes new, flexible procedures and combines key aspects of the CRE and SMI reviews. The team also sought to create a comprehensive monitoring process that includes all the school nutrition programs. Another priority was to simplify review procedures in response to State agencies' needs.
The proposed administrative review process would:
• Promote overall integrity in the school nutrition programs by incorporating key requirements of the CRE and SMI reviews.
• Enable the State agency to monitor essential requirements of the NSLP snack service and seamless summer option, the Special Milk Program, and the Fresh Fruit and Vegetable Program while conducting the administrative review.
• Include recommended off-site monitoring approaches to offer State agencies the ability to conduct reviews more efficiently by incorporating off-site State agency staff with the skills needed to address specific monitoring areas.
• Include risk-based approaches to enable the State agency to target error prone areas and focus its monitoring resources on SFAs and schools needing the most compliance assistance.
• Add Resource Management to the general areas of review to better assess the financial condition of the nonprofit food service.
• Promote consistency in the review process across all States.
• Include updated, user-friendly forms; new risk assessment tools; and statistical sampling for increased State agency efficiency. The forms and tools associated with the proposed administrative review process will be addressed separately in a 60-day notice to be published in the
The main focus of the proposed administrative review under 7 CFR 210.18 would continue to be the NSLP and SBP, and the State agency would continue to perform existing review procedures but in an updated and more flexible manner. In an effort to create a unified accountability system, the State agency would also be required to monitor the NSLP afterschool snack program and seamless summer option, the Fresh Fruit and Vegetable Program, and the Special Milk Program in a manner that is consistent with the review process established in 7 CFR 210.18, as applicable. Most of the regulatory changes needed to update the administrative review process would be in 7 CFR 210.18. However, this rule would make changes throughout 7 CFR parts 210, 215, and 220 to achieve a unified accountability system for the school nutrition programs. In addition, the rule would remove the definition of “large school food authority” from 7 CFR 210.18, where it would no longer be needed, and add it to 7 CFR 235.2, where it would continue to apply. Detailed procedures for the new review process for the NSLP, SBP and other school meal programs are provided in the FNS
This proposed rule would also make several changes to the SFA regulatory requirements to complement the proposed administrative review process. First, the SFA's existing responsibilities in 7 CFR 210.14 would be clarified with regard to indirect costs as they would be specifically monitored by the State agency under the new administrative review process. Second, the SFA annual on-site monitoring of schools, required in 7 CFR 210.8, would be strengthened by incorporating readily observable general areas of review, and by extending SFA on-site monitoring to the SBP. These proposed changes are addressed in more detail later in the preamble.
This proposed rule would also make a number of miscellaneous edits to remove obsolete provisions in 7 CFR part 210, and to update wording to reflect the diversity of certification mechanisms used in school meal programs beyond the traditional collection of household applications. In addition, this rule would update the designation of a form in 7 CFR 210.5(d)(3), 7 CFR 210.20(a)(2), and 7 CFR 220.13(b)(2) by changing the references to the SF–269, final Financial Status Report, to FNS–777, as approved by the Office of Management and Budget.
While this rulemaking action is underway, FNS has allowed the following temporary review options for State agencies. Prior to the finalization of this rulemaking, State agencies may either:
1. Seek a waiver of the existing regulatory review procedures pursuant to section 12(l) of the NSLA, 42 U.S.C. 1760(l), and conduct reviews in accordance with the proposed administrative review process and the corresponding
2. Continue with existing review procedures under 7 CFR 210.18 and the corresponding
FNS provided this flexibility to State agencies beginning in School Year 2013–2014. Almost all State agencies have requested the waiver and have adopted the new administrative review process described in this proposed rule. The new process, conducted on a shorter, 3-year cycle, has begun to generate a large volume of high value information that will strengthen FNS and State agency integrity efforts over
FNS also anticipates that the experience of State agencies using the updated review process will contribute to informed public comments that guide the development of the implementing rule. When the implementing rule establishing the new unified administrative review system is promulgated, all State agencies will be required to follow the finalized administrative review regulations.
Note: The words “school” and “site” are used interchangeably in this proposed rule, as applicable to each program, to refer to the location where meals are served. This proposed rule also uses the term SFA to generally refer to the governing body responsible for school food service operations. However, some of those responsibilities are fulfilled by the local educational agency (LEA or district), most notably the certification and benefit issuance process, indirect costs, competitive food sales, and local wellness policies. Use of the term SFA in this proposed rule is not intended to imply the responsibilities reserved for the LEA have shifted to the SFA.
Currently, State agencies that are not conducting administrative reviews under the new process perform the following administrative review activities under the existing CRE procedures as required in the regulations in 7 CFR 210.18. Under the existing CRE procedures:
• State agencies monitor lunches, and must review breakfasts at 50 percent of the schools selected for an NSLP administrative review.
• State agencies must review each SFA once during each 3-year review cycle, with no more than four years lapsing between reviews.
• When reviewing an SFA, State agencies conduct on-site reviews of about 10% of those schools participating in the NSLP.
• The scope of administrative review covers both critical and general areas. The critical areas, termed Performance Standards 1 and 2, assess whether lunches and breakfasts claimed for reimbursement are served to children eligible for free, reduced price, and paid meals; are counted, recorded, consolidated, and reported through a system that consistently yields correct claims; and meet meal requirements. The general areas assess whether the SFA meets other program requirements related to eligibility for free and reduced price benefits, civil rights, monitoring, reporting and recordkeeping, food safety, and resource management.
• State agencies conduct a nutrient analysis of school lunches and breakfasts to assess compliance with calorie requirements, saturated fat, and sodium.
• If an SFA has critical area violations in excess of specified review thresholds, a follow-up review is conducted in all large SFAs and in at least 25 percent of small SFAs.
• The follow-up review includes the certification, count and service procedures in the Special Milk Program and the afterschool snack program operated by the reviewed schools.
• Fiscal action is required for all violations of Performance Standard 1 and specific violations of Performance Standard 2.
Most of these procedures would continue, in some manner, under the proposed rule.
The proposed administrative review under 7 CFR 210.18 would incorporate new and key existing procedures from the CRE and SMI reviews. It streamlines existing review procedures, gives State agencies new review flexibilities, simplifies fiscal action, and includes updated review forms and new tools. This proposed rule would replace the existing CRE and SMI monitoring processes, and is expected to improve program integrity by providing a single, comprehensive, effective, and efficient State agency monitoring process. Specific procedures for conducting the proposed review process are reflected in the FNS
The key procedures carrying forward from previous CRE and SMI reviews include timing of reviews, scheduling of SFAs, number of schools to review, exit conference and notification, corrective action, withholding payment, SFA appeal of State agency findings, and FNS review activity. These provisions are found in the amendatory language and may include minor non-substantive technical changes in 7 CFR 210.18, but are not discussed in this preamble. The preamble focuses on new key proposed changes, which are discussed next.
Under existing 7 CFR 210.18, the administrative review process is a comprehensive on-site evaluation of SFAs participating in the school meal programs. The proposed rule envisions that some administrative review activities can be conducted off-site, rather than during the on-site portion of the review. Adding the off-site approach is expected to assist the State agency by reducing the State agency's travel time and expense, enabling the State agency to conduct the documentation review and other existing review requirements over a longer period of time than would be possible while on-site, and allowing the reviewer to seek input from specialized State staff for adequate review of complex documentation (
Off-site review activity is especially important for the Resource Management area of review which, as proposed at 7 CFR 210.18(h)(1), would require an off-site evaluation of information to determine if a comprehensive review is necessary. For other areas of review, the off-site review is strongly recommended but it is not required. Examples of possible off-site review activities include:
• Identifying the sites for review using the site selection procedures in the proposed 7 CFR 210.18(e).
• Reviewing documentation such as the SFA agreement, policy statement, renewal application, prior review findings and corrective action plans.
• Obtaining and reviewing the benefit issuance document.
• Selecting student certifications for review.
• Examining the SFA's verification procedures.
• Reviewing the SFA's counting and claiming procedures and documentation.
• Reviewing menus, production records, and related documents.
• Reviewing the Offer versus Serve policy.
• Identifying the school most at risk for nutrition related violations and conducting a targeted menu review in that school.
• Determining the targeted menu review approach.
In addition to the proposed off-site review activity, the on-site review activities will focus on validating the information obtained during the SFA off-site review and those aspects of program operations that can best be reviewed on-site. These types of on-site review activities are discussed in more
While some of the review activities can be conducted off-site, an observation of program operations while on-site at the SFA remains a critical component of program oversight. Prior to commencing on-site review activities, States are encouraged to convene an entrance conference with key SFA and, as applicable, LEA staff and administrators with responsibility for ensuring program requirements are followed. This initial conversation can help clarify expectations for the on-site review, raise preliminary issues identified during off-site review activities, and identify the additional information needed to complete the on-site portion of the review. While not required, this proposed rule supports, at 7 CFR 210.18(i)(1), the option for State agencies to begin the administrative review by conducting an entrance conference with the relevant SFA staff. This provision reflects existing practice. This rule would also retain the existing requirement for the State agency to conduct an exit conference. The proposed rule would codify the exit conference requirement at 7 CFR 210.18(i)(2).
This rulemaking would require, in proposed 7 CFR 210.18(f)(1), that State agencies use updated forms and tools to conduct the administrative review process. As stated earlier, FNS will issue the updated tools to coincide with the publication of the implementing rule. The new tools include: An Off-site Assessment Tool, an On-site Assessment Tool, a Meal Compliance Risk Assessment Tool, a Dietary Specifications Assessment Tool, and a Resource Management Risk Indicator Tool.
These tools and corresponding instructions are currently available to State agencies on the FNS PartnerWeb, which is a restricted access online portal for State agencies that administer the school meal programs. State agencies can find the tools in the Administrative Review Folder located in the Resources and Guidance document library of the CND Policy and Memoranda Community. When finalized, these tools will also available on the FNS Web site. With the exception of the Resource Management Risk Indicator Tool, which must be completed off-site, the required administrative review tools may be completed on-site.
The proposed administrative review would continue to include critical and general areas which mirror the critical and general areas specified in existing 7 CFR 210.18(g) and (h), with the modifications discussed below.
Existing 7 CFR 210.18(b) defines, and existing 7 CFR 210.18(g) describes in detail, the critical areas, which are two performance standards that help evaluate compliance with program requirements. Performance Standard 1 (PS–1) focuses on certification for free and reduced price meals, benefit issuance, and meal counting and claiming. Performance Standard 2 (PS–2) focuses on meals meeting the meal pattern and dietary specification requirements. The proposed rule at 7 CFR 210.18(g)(1) and (2) would retain both performance standards but modify how they are monitored as described in the next two subsections of this preamble.
The proposed rule at 7 CFR 210.18(g) retains the existing PS–1, with only minor technical changes. Existing PS–1 refers to “All, free, reduced price and paid
Existing 7 CFR 210.18(g)(1) has a three-pronged scope of review. The State agency must:
• Determine the number of children eligible for free, reduced price and paid meals, by type, in the reviewed schools (hereafter termed “Certification”).
• Evaluate the system for issuing benefits and updating eligible status by validating the mechanisms the reviewed school uses to provide benefits to eligible children (hereafter termed “Benefit Issuance”).
• Determine whether the meal counting system yields correct claims (hereafter termed “Meal Counting and Claiming”).
The proposed rule would retain the above processes, but streamline and consolidate the Certification and Benefit Issuance review processes to improve program integrity and simplify the review process.
Under proposed 7 CFR 210.18(g)(1)(i), the State agency would be required to:
• Obtain the free and reduced price benefit issuance document for each school under the jurisdiction of the SFA for the day of review or a day in the review period.
• Review all, or a statistically valid sample of, free and reduced price certification documentation (
• Validate that reviewed students' free and reduced price eligibility status was correctly determined and properly transferred to the benefit issuance document.
In addition, the proposed rule expands the scope of Certification and Benefit Issuance review from the reviewed sites to the SFA level in order to provide the State agency with a more accurate picture of the SFA's practices at all schools. The proposed rule requires the State agency to review the free and reduced price certification and benefit issuance documentation for students across the entire SFA. This proposed change reflects that most SFAs have a centralized recordkeeping system; generally certifications are made and benefit issuance is maintained at the SFA level. The advantage of this approach is that it allows certification and benefit issuance errors identified during a review to be corrected at the SFA level.
As permitted under existing 7 CFR 210.18(g)(1)(i)(A)(
As under existing 7 CFR 210.18(g)(1)(i)(C), the Meal Counting and Claiming portion of the review would continue to ensure that all free, reduced price and paid meals are accurately counted, recorded, consolidated and reported through a system which consistently yields correct claims. Under proposed 7 CFR 210.18(g)(1)(ii), the State agency would continue to be required to monitor counting and claiming at both the SFA and reviewed school levels. The review strategies would remain unchanged. Under the proposed rule, the State agency would continue to determine whether:
• Daily lunch counts, by type, for the review period are more than the product of the number of children determined to be eligible, by type for the review period, adjusted for attendance at the reviewed schools;
• Each type of food service line provides accurate point of service lunch counts, by type, and those lunch counts are correctly counted and recorded at the reviewed schools; and
• All lunches at the reviewed schools are correctly counted, recorded, consolidated and reported for the day they are served.
In addition, State agencies would be required to determine whether lunch counts submitted by each school are correctly consolidated, recorded, and reported by the SFA on the Claim for Reimbursement.
Thus, the proposal combines the certification and benefit issuance process, and expands the scope of the certification and benefits issuance review to the SFA level, and establishes acceptable sample sizes and confidence levels for statistical sampling at proposed 7 CFR 210.18(g)(1)(i). The proposal retains existing meal counting and claiming review procedures at proposed 7 CFR 210.18(g)(1)(ii).
Under existing PS–2 found at 7 CFR 210.18(g)(2), the State agency monitors SFA compliance with the meal patterns and dietary specifications for lunches and breakfasts for each age/grade group. Currently, State agencies must review menu and production records for a minimum of five operating days to determine whether all food components and quantities have been offered. For the day of review, the State agency must also observe the serving line(s) to determine whether all food components and food quantities are offered, and observe a significant number of program meals counted at the point of service for each type of serving line to determine whether the meals selected by the students contain the required food components and quantities. In addition, the State agency must conduct a nutrient analysis of a school in the SFA to determine whether the meals offered meet the calorie, sodium and saturated fat requirements, and review nutrition labeling to assess compliance with the trans fat limit. The State agency must also assess whether performance-based cash assistance should continue to be provided for meals served.
The proposed rule at 7 CFR 210.18(g)(2) would largely retain the existing scope of review for PS–2 with the following modifications:
• Require the State agency to complete a USDA-approved
• Require the State agencies to review menu and production records for a minimum of three to a maximum of seven operating days to determine whether all food components and quantities have been offered over the course of a typical school week.
• Require the State agency to confirm, through on-site observation of reviewed schools that
• Require the State agency to assess compliance with the dietary specifications (calories, sodium, saturated fat, and trans fat) using a risk-based approach and only require a weighted nutrient analysis for a school determined to be at high risk for violations (see discussion under the heading
The State agency would continue to observe the meal service lines and review menu documentation on the day of review at review schools to determine whether all service lines offer all of the required food components and quantities. The State agency would also observe a significant number of program meals counted at the point of service for each type of serving line to determine whether the meals selected by the students contain the required food components and quantities.
Existing 7 CFR 210.18(g)(2)(iv) requires a weighted nutrient analysis of the meals for students in age groups K and above to determine whether the meals offered meet the calorie, sodium, and saturated fat requirements set forth in 7 CFR 210.10 and 7 CFR 220.8. Under the proposed rule at 7 CFR 210.18(g)(2)(ii), the State agency would continue to assess whether the lunches and breakfasts offered to children are consistent with the calories, sodium, saturated fat, and trans fat restrictions. However, unlike the existing requirements, the proposed rule would require a risk-based approach to identify the reviewed school most at risk of nutrition-related violations and conduct a targeted menu review of that school.
Under the proposal, the State agency would complete the Meal Compliance Risk Assessment Tool off-site or on-site for each school selected for review to identify the school most at risk for nutrition-related violations. This risk-based approach is intended to lessen the review burden on State agencies and allow them to better use their resources. For the one school determined to be most at risk, the State agency would conduct an in-depth, targeted menu review using one of four FNS approved options. For the targeted menu review, the State agency would have the following options: conduct a nutrient analysis, validate an existing nutrient analysis performed by the SFA or a contractor, complete the Dietary Specifications Assessment Tool to further examine the food service practices, or follow an alternative FNS-approved process utilizing the Menu Planning Tools for Certification for Six Cent Reimbursement. This proposed rule revises the existing nutrient analysis provisions found in 7 CFR 210.10(h) and 7 CFR 210.10(i) to reflect this new streamlined and risk-based approach.
As required in existing 7 CFR 210.18(g)(2)(v), the proposed rule at 7 CFR 210.18(g)(2)(iii) continues to require the State agency to assess whether performance-based cash assistance should continue to be provided for the meals served.
Under existing 7 CFR 210.18(i), critical area violations in excess of specified thresholds trigger a follow-up review by the State agency. This proposed rule lessens the burden
Accordingly, this proposed rule removes the definitions of “follow-up reviews” and “review threshold” in existing 7 CFR 210.18(b) and removes the follow-up review procedures in 7 CFR 210.18(i). Minor references to follow-up review and review threshold throughout 7 CFR part 210 are also removed. The definitions of “large school food authority” and “small school food authority” would be removed from 7 CFR 210.18(b), as these definitions were used in the determination of which SFAs received a follow-up review. The same definition of “large school food authority” would be added to 7 CFR part 235, State Administrative Expense Funds, where it remains relevant for the State Administrative Expense allocation process.
Under existing 7 CFR 210.18(h), State agencies are required to assess compliance with five general areas during the administrative review,
• Maintenance of the Nonprofit School Food Service Account—7 CFR 210.14(a), (b) and (c);
• Paid Lunch Equity—7 CFR 210.14(e);
• Revenue from Nonprogram Foods—7 CFR 210.14(f); and
• Indirect Costs—2 CFR part 225, and 7 CFR 210.14(g) (as proposed).
Currently, SFAs are required to comply with these resource management requirements specified under existing 7 CFR 210.14; however, existing regulations do not require the State agencies to monitor compliance as part of the administrative review. Under this proposed rule at 7 CFR 210.18(h)(1), the State agency would monitor these five requirements using the
• Size of the SFA (40,000 students or more),
• Financial findings on reviews or audits within the last three years,
• Inadequate practices related to maintenance of the nonprofit school food service account,
• Inadequate practices related to paid lunch equity,
• Inadequate practices related to revenue from nonprogram foods, and/or
• Inadequate practices related to indirect costs.
Adding Resource Management to the proposed administrative review would establish a framework for this review area, promote review consistency among all States, and promote proper stewardship of Federal funds. The required off-site review of Resource Management allows the reviewer to use the expertise of off-site State staff with specialized knowledge of resource management that may not typically be present during an on-site review. Under the proposal, State agencies continue to have flexibility to review Resource Management more frequently or more closely, provided the minimum areas of review are covered.
The Resource Management review area does not include procurement. Given the complexity of the procurement process, FNS will develop a separate review process for the State agencies to monitor compliance with procurement requirements. Excluding procurement from the proposed administrative review under 7 CFR 210.18 does not change the SFA's current responsibility to meet procurement standards applicable to those operating school meals programs. Pursuant to federal law and regulations at 2 CFR 200.318 through 2 CFR 200.326, SFAs continue to be required to fully comply with all attendant procurement standards and will be held accountable to those standards through regular State agency oversight.
It is also important to note that this proposed rule adds a new paragraph (g) to the Resource Management requirements in 7 CFR 210.14 to clarify the SFA's existing responsibilities with regard to indirect costs. This is discussed later in the preamble under the heading, “IV. Proposed Changes to SFA Requirements.”
Proposed 7 CFR 210.18(h)(2),
In total, the proposed general areas of review include, but are not limited to, the following areas:
• Free and Reduced Price Process—including verification, notification, and other procedures—7 CFR part 245.
• Civil Rights—7 CFR 210.23(b).
• SFA On-site Monitoring—7 CFR 210.8(a)(1) and proposed 220.11(d).
• Reporting and Recordkeeping—7 CFR parts 210, 220 and 245.
• Food Safety—7 CFR 210.13.
• Competitive Food Services—7 CFR 210.11 and 7 CFR 220.12.
• Water—7 CFR 210.10(a)(1)(i) and 7 CFR 220.8(a)(1).
• Professional Standards—7 CFR 210.30.
• SBP and SFSP Outreach—7 CFR 210.12(d).
• Local School Wellness Policies.
LEAs have been required to have local school wellness policies in place since 2006. Assessing compliance with this requirement has been a general area of review under the CRE, and is included in the
Finally, as noted later in the preamble, this proposed rule expands the existing requirement for SFAs to conduct on-site monitoring. This proposed change to 7 CFR 210.8 is discussed in more detail later under the heading “IV. Proposed Changes to SFA Requirements.”
The review of
In contrast, under existing 7 CFR 210.18(i)(4)(iv), a State agency is only required to monitor the certification, count and milk/meal service procedures for the Special Milk Program (7 CFR part 215) or the NSLP afterschool snack program (7 CFR part 210) during a follow-up review if the State agency has not evaluated these previously in the schools selected for an administrative review. However, including these programs in the regular, periodic review of SFA operations is critical to ensuring they are properly administered and is expected to improve program integrity overall.
• Use the
• Review the school's eligibility for the afterschool snack program.
• Ensure the school complies with counting and claiming procedures.
• Confirm the school food authority conducts self-monitoring activities twice per year as required in 210.9(c)(7).
• Assess compliance with the snack meal pattern in 7 CFR 210.10(o).
• Monitor compliance with the reporting and recordkeeping, food safety and civil rights requirements in 7 CFR part 210.
• Use the
• Verify the site eligibility for the seamless summer option.
• Ensure the school food authority monitors the site(s) at least once per year.
• Review meal counting and claiming procedures.
• Monitor compliance with the meal patterns for lunches and breakfasts in 7 CFR 210.10 and 7 CFR 220.8, respectively.
• Confirm the school food authority informs families of the availability of free meals.
• Monitor compliance with the reporting and recordkeeping, food safety and civil rights requirements in 7 CFR part 210.
• Use the
• Review the milk pricing policy, counting and claiming, and milk service procedures.
• Observe the milk service at the reviewed site if there are issues with the meal counting and claiming procedures in the NSLP or SBP.
• Ensure accuracy in certification and benefit issuance, when observing milk service.
• Monitor compliance reporting and recordkeeping, food safety and civil rights requirements in 7 CFR part 215.
• Confirm availability of benefits to all enrolled children free of charge.
• Monitor allowable program costs, service time, outreach efforts, and types of fruits and vegetables offered.
• Monitor compliance with the reporting and recordkeeping, food safety and civil rights requirements in 7 CFR part 210.
The Department has issued separate rulemaking, Fresh Fruit and Vegetable Program, 77 FR 10981 (February 24, 2012) to solicit public comment on the proposed Fresh Fruit and Vegetable Program. Currently, the program is operated under guidance that follows general requirements for program operations under 7 CFR part 210. The implementing administrative review rule will incorporate any citation changes that may be necessary if the Fresh Fruit and Vegetable Program rule is finalized in the location proposed at 7 CFR part 211.
Existing regulations at 7 CFR 210.19(c) require the State agency to identify the SFA's correct entitlement and take fiscal action when any SFA claims or receives more Federal funds than earned. Under this proposed rule at 7 CFR 210.18(l), State agencies would continue to be required to take fiscal action for all PS–1 violations and for specific PS–2 violations, as discussed next. This proposed rule expands the scope of fiscal action for certification/benefit issuance PS–1 violations, revises the method to calculate fiscal action for applicable violations, and modifies the State agency's authority to limit fiscal action for specific critical area violations when corrective action is completed.
Details about the proposed revisions to fiscal action follow.
Under existing 7 CFR 210.18(m)(1), State agencies are required to take fiscal action for all certification, benefit issuance, meal counting, and claiming violations of PS–1 and fiscal action is generally limited to the reviewed schools. If corrective action occurs, the State agency may limit fiscal action from the point corrective action occurs back through the beginning of the review period.
For the Certification and Benefit Issuance portion of the new administrative review, 7 CFR 210.18(g) of this proposed rule would require State agencies to review certifications/benefit issuance for all the schools under its jurisdiction, not just reviewed schools. This broader scope of review is expected to provide the State agency with a more accurate picture of the SFA's practices at all participating schools under the jurisdiction of the SFA and lead to improved program integrity.
Given the broader scope of review at the SFA level, rather than the reviewed school level, this rule proposes several changes to the fiscal action procedures. The proposed rule at 7 CFR 210.18(l)(l) would apply fiscal action for certification and benefit issuance errors to the entire SFA, including non-reviewed schools. Expanding fiscal action across the entire SFA differs from the existing CRE review, and from the interim administrative review approach used by a number of State agencies operating under a waiver from CRE beginning and using the updated
The proposed rule would revise fiscal action in the new administrative review process by basing fiscal action on a State-calculated certification and benefit issuance adjustment factor for free and for reduced price meals, respectively. The adjustment factor for free meals is the ratio of the State agency count of students certified as eligible for free meals divided by the SFA count of students certified as eligible for free meals. The resulting percentage represents the benefit issuance accuracy rate for free meals. A similar calculation is made to obtain the reduced price adjustment factor. Under the proposed rule, the total number of free and reduced price meals claimed is adjusted to reflect the State-calculated certification and benefit issuance adjustment factors. This proposed approach differs from the CRE approach, which based fiscal action on the number of incorrect certifications in reviewed schools and the corresponding number of serving days. The proposed approach streamlines the determination of fiscal action and ensures program integrity SFA-wide.
The proposed rule amends 7 CFR 210.19(c) to indicate fiscal action applies to “meals”, (rather than just lunches) and the Special Milk Program at 7 CFR part 215.
Under existing 7 CFR 210.18(m)(2)(i), State agencies are required to take fiscal action for food component violations of PS–2. However, if corrective action occurs, the State agency may limit fiscal action from the point corrective action occurs back through the beginning of the review period. Given the existing scope of review for PS–2, fiscal action is generally limited to the reviewed schools.
Under the proposed rule at 7 CFR 210.18(l)(2)(i), State agencies continue to be required to take fiscal action for PS–2 missing food component violations. Although fiscal action would generally be applied to the reviewed school, if a centralized menu is in place, the State agency should evaluate the cause(s) of the violation to determine if it is appropriate to apply fiscal action SFA wide.
In addition, the proposed rule requires the State agency to assess fiscal action on meals claimed for reimbursement that are not supported by appropriate documentation. An SFA is required to document that it offers reimbursable meals and maintain documentation that demonstrates how meals offered to students meet meal pattern requirements. If production records are missing, or missing for a certain time period, the proposed rule would require the State agency to take fiscal action unless the SFA is able to demonstrate to the satisfaction of the State agency, that reimbursable meals were offered and served.
Under existing 7 CFR 210.19(c)(ii), fiscal action must be extended to the beginning of the school year or to that point during the current school year when the infraction first occurred, except as specified under existing 7 CFR 210.18(m). Based on the severity and longevity of the problem, the State agency may extend fiscal action back to previous school years, as applicable. The proposed rule retains the general duration, but in 7 CFR 210.18(l)(3), provides some flexibility for State agencies to limit the duration of fiscal action when corrective action takes place for PS–1 and PS–2 violations related to food components/missing production records. The proposal is as follows:
As proposed in 7 CFR 210.18(l)(3)(i), for PS–1 certification and benefit issuance errors, fiscal action would be required for the review period and the month of the on-site review, at a minimum. For example, if the review period is January and the month of the on-site review is February, then at a minimum fiscal action would be applied to the months of January and February. In scenarios where a month falls in between,
For all other PS–1 violations and PS–2 violations relating to missing food components and missing production record:
• If corrective action occurs during the on-site review month, the State agency must apply fiscal action from the point corrective action occurs back through the beginning of the on-site review month and for the review period. For example, if the review period is in January and the on-site review occurs in March and during the course of the review errors are identified and corrected on March 15th, then fiscal action would be applied from March 1st through March 14th and for the entire review period,
• If corrective action occurs prior to the review period, no fiscal action is required under the proposal. In this scenario, any error identified and corrected prior to the review period,
• If corrective action occurs in a claim month(s) between the review period and the on-site review month, the State agency would apply fiscal action only to the review period. For example, if the review period is January and the on-site review occurs in March and the corrective action takes place in February, the state agency would be required to apply fiscal action only to the review period,
Based on the severity and longevity of the problem, the State agency would be able to extend fiscal action back to the beginning of the year or back to previous school years.
Existing 7 CFR 210.18(m)(2)(ii) requires fiscal action for repeated PS–2 violations related to vegetable subgroups and milk type. For repeated PS–2 violations related to food quantities, whole grain-rich foods and the dietary specifications, existing 7 CFR 210.18(m)(2)(iii) states that fiscal action is discretionary. The proposed rule would clarify the scope and duration of fiscal action for these repeated PS–2 violations. These changes are found at 7 CFR 210.18(l)(2)(ii) through (v) of the proposed rule.
For purposes of administrative reviews, repeated violations are generally those identified during the administrative review of an SFA in one cycle and identified again in the administrative review of the same SFA in the next review cycle. For example, if the State agency finds a PS–2 violation (
It is important to note that while fiscal action is generally limited to the repeated violation found in a subsequent administrative review cycle, State agencies are required by existing 7 CFR 210.19(c) to take fiscal action for recurrent violations found in later visits to the SFA during the initial cycle (
• If meals contain insufficient quantities of required food components, the affected meals may be disallowed/reclaimed.
• If whole grain-rich foods are not offered over the course of the week reviewed, all meals served in the deficient week may be disallowed/reclaimed.
• If insufficient whole grain-rich foods are offered, meals for one day during the week under review may be disallowed/reclaimed. The State agency has discretion to select which day's meals may be disallowed/reclaimed. Additional meals may be disallowed/reclaimed at State agency's discretion.
• If a vegetable subgroup is offered in insufficient quantity to meet the minimum weekly requirement, meals may be disallowed/reclaimed for one day that week. The State agency has discretion to select which day's meals are disallowed/reclaimed. Additional meals may be disallowed/reclaimed at the State agency's discretion.
• If the amount of fruit juice offered exceeds 50 percent of the total amount of fruits offered, or the amount of vegetable juice exceeds 50 percent of the total amount of vegetables offered, meals for the entire week may be disallowed/reclaimed.
The intent of these proposed fiscal action modifications and clarifications is to promote program integrity. Clearly identifying the critical area violations that may result in fiscal action and the scope and duration of any fiscal action, will promote consistency in fiscal action procedures among State agencies.
The administrative review manual also includes automated forms and tools designed to simplify the fiscal action process for State agencies. Fiscal action, whether required or at the States discretion, would be applied in a consistent manner and would take significantly less time to complete.
FNS is especially interested in soliciting feedback from early adopters of the new administrative review process on the impact of the proposed fiscal action method. We acknowledge that expanding the scope of review to include the SBP and strengthening fiscal action for PS–1 and PS–2 violations may result in increased fiscal action against certain SFAs.
Section 207 of the HHFKA amended section 22 of the NSLA (42 U.S.C. 1769c) to require State agencies to report the final results of the administrative review to the public in the State in an accessible, easily understood manner in accordance with guidelines promulgated by the Secretary.
This proposed rule at 7 CFR 210.18(m) requires the State agency to post a summary of the most recent final administrative review results for each SFA on the State agency's publicly available Web site. The review summary must cover eligibility and certification review results, an SFA's compliance with the meal patterns and the nutritional quality of school meals, the results of the review of the school nutrition environment (including food safety, local school wellness policy, and competitive foods), and compliance related to civil rights, and general program participation, in a format prescribed by FNS. At a minimum, this would include the written notification of review findings provided to the SFAs Superintendent as required at 7 CFR 210.18.(i)(3). FNS will provide additional guidance on the appropriate format, including templates and model summaries, after the implementing rule is published.
State agencies would be required to post this review summary no later than 30 days after the State agency provides the final results of the administrative review to the SFA. The State agency would also be required to make a copy of the final administrative review report
Current regulations in 7 CFR 210.18(n) and (o) address the State agency reporting requirements associated with the administrative review process. This proposed rule would retain the requirement to file the form FNS–640 at proposed 7 CFR 210.18(n), but would remove reference to follow-up reviews. The proposal retains the basic record keeping requirement at 210.18(o), but removes the reporting requirement associated with follow-up reviews found in existing 7 CFR 210.18(o) and 7 CFR 210.20(a)(5) due to the proposed elimination of the follow-up reviews. The recordkeeping associated with follow-up reviews in 7 CFR 210.18(p) and 7 CFR 210.20(b)(7) would also be eliminated.
The proposed removal of the follow-up review is expected to reduce the reporting and recordkeeping burden on State agencies. As discussed earlier, the information collection associated with the updated forms and new tools required for the administrative review process will be addressed separately in a 60-day notice, when the implementing rule is published.
As stated earlier, this proposed rule would add a new paragraph (g) in 7 CFR 210.14,
To improve overall monitoring of the school meal programs, this proposed rule would also expand the SFA on-site monitoring process. Under existing 7 CFR 210.8(a)(1), SFAs with more than one school are required to perform no less than one on-site review of the lunch counting and claiming system employed by each school under its jurisdiction. The SFA must conduct the required on-site review prior to February 1 of each school year. The proposed rule at 7 CFR 210.8(a)(1) would expand the scope of on-site monitoring to include the readily observable general areas of review cited under 7 CFR 210.18(h), as identified by FNS. Readily observable areas of review could include, but are not limited to, the availability of free potable water, proper food safety practices, and compliance with Civil Rights requirements.
In addition, the SFA monitoring activities would extend to the SBP. The SFA would be required to annually monitor the operation of the NSLP and SBP at each school under its jurisdiction. As is currently done with the NSLP, this monitoring of the SBP would include the counting and claiming system used by a school and the general areas of review that are readily observable. This expansion of the SFA monitoring activities is intended to ensure that SFAs self-monitor and are aware of operational issues, and that schools receive ongoing guidance and technical assistance to facilitate compliance with program requirements.
The following chart summarizes the key existing and proposed administrative review requirements and states the anticipated outcomes.
The following chart summarizes SFA requirements associated with the administrative review process.
As previously mentioned, this rule proposes a number of miscellaneous changes to conform with other changes in the programs. Accordingly, the proposal would:
• Delete obsolete provision at 7 CFR 210.7(d)(1)(vi) related to validation reviews of performance-based reimbursement;
• Revise 7 CFR 210.9(b)(18) through 210.9(b)(20) and 210.15(b)(4) to reflect the diversity of certification mechanisms beyond household applications;
• Revise 7 CFR 210.19(a)(1) to reflect the Paid Lunch Equity requirements;
• Revise 7 CFR 210.19(a)(5) to update the review frequency to 3 years conforming with the requirement at 210.18(c); and
• Delete obsolete provisions at 7 CFR 210.20(b)(7) and 210.23(d).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule has been reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866 and has been determined to be Not Significant.
This proposed rule has been designated by the Office of Management and Budget (OMB) to be Not Significant; therefore a Regulatory Impact Analysis is not required.
The Regulatory Flexibility Act (5 U.S.C. 601–612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review it has been certified that this proposed rule would not have a significant impact on a substantial number of small entities. This proposed rule would update the administrative review process that State agencies must follow to monitor compliance with school meal programs' requirements. The proposed administrative review process provides State agencies more flexibility, tools and streamlined procedures. FNS does not expect that the proposed rule will have a significant economic impact on small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.
This proposed rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) that would result in expenditures for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The nutrition assistance programs and areas affected by this proposed rule are listed in the Catalog of Federal Domestic Assistance as follows:
• National School Lunch Program, No. 10.555
• School Breakfast Program, No. 10.553
• Special Milk Program, No. 10.556
• State Administrative Expenses for Child Nutrition, No. 10.560
• Fresh Fruit and Vegetable Program, No. 10.582
For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related notice (48 FR 29115, June 24, 1983), the nutrition assistance programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. The Child Nutrition Programs are federally funded programs administered at the State level. FNS headquarters and regional office staff engage in ongoing formal and informal discussions with State and local officials regarding program operational issues. The structure of the Child Nutrition Programs allows State and local agencies to provide feedback that contributes to the development of meaningful and feasible program requirements. This proposed rule has taken into account the extensive experience of State agencies conducting the administrative reviews which would be updated by this rule.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121.
FNS headquarters and regional offices have formal and informal discussions with State agency officials on an ongoing basis regarding the Child Nutrition Programs and policy issues. In addition, prior to drafting this proposed rule, FNS assembled a 26-member team consisting of staff from FNS Headquarters and the seven Regional Offices, and State Agency staff from Kansas, Michigan, New York, North Carolina, Oregon, Pennsylvania and Texas. The School Meal Administrative Review Reinvention Team (SMARRT) worked together for a year to address
The Healthy, Hunger-Free Kids Act of 2010 (HHFKA) amended section 22 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1769c, to require that:
a. The administrative review process be a unified accountability system; and
b. State agencies report the final results of reviews, and post them or otherwise make them available to the public.
This proposed rule would update the administrative review process established in 7 CFR 210.18 to carry out these two statutory requirements. In addition, the proposed rule would also make a number of changes to address issues and concerns raised by State agencies. Issues identified by State agencies include simplifying the administrative review and fiscal action. State agencies also want the administrative reviews to be meaningful and contribute to better meal service. They also want a review process that would allow them to better utilize the limited resources they have.
FNS has considered the concerns identified by SMARRT. The administrative review process proposed in this rule would streamline review procedures to allow more time for technical assistance, emphasize risk-assessment to enable the State agency to focus the administrative review on school food authorities at high risk for noncompliance, and provide State agencies flexibility to conduct portions of the review off-site to make better use of limited resources.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, appeal procedures in 7 CFR 210.18(q) and 7 CFR 235.11(f) of this chapter must be exhausted.
Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the federal government and Indian Tribes. In spring 2011, FNS offered five opportunities for consultation with Tribal officials or their designees to discuss the impact of the Healthy, Hunger-Free Kids Act of 2010 on tribes or Indian Tribal governments. FNS followed up with conference calls on February 13, 2013; May 22, 2013; August 21, 2013 and November 6, 2013. These consultation sessions provide the opportunity to address Tribal concerns related to the School Meals Programs. To date, Indian Tribal governments have not expressed concerns about the required unified accountability system during these consultations.
USDA is unaware of any current Tribal laws that could be in conflict with the proposed rule. The Department will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule.
FNS has reviewed this proposed rule in accordance with Department Regulation 4300–4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on children on the basis of age, race, color, national origin, sex, or disability. A careful review of the rule's intent and provisions revealed that this proposed rule is not intended to reduce a child's ability to participate in the National School Lunch Program, School Breakfast Program, Fresh Fruit and Vegetable Program, or Special Milk Program.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number. This is a revision of currently approved collection. The administrative reviews in School Nutrition Program provisions in this rule minimally increase burden hours for the National School Lunch Program (NSLP) information collection, OMB Control Number #0584–0006, expiration date 2/29/2016. These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the information collection requirements have been approved, FNS will publish a separate action in the
Written comments on the information collection in this proposed rule must be received by July 10, 2015.
Send comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC 20503. Please also send a copy of your comments to Lynn Rodgers-Kuperman, Child Nutrition Monitoring and Operations Support Division, 3101 Park Center Drive, Alexandria, VA 22302. For further information, or for copies of the information collection requirements, please contact Lynn Rodgers-Kuperman at the address indicated above. Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the Agency's functions, including whether the information will have practical utility; (2) the accuracy of the Agency's estimate of the proposed information collection burden, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this request for comments will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
This proposed rule slightly increased the number of burden hours for 0584–0006 collection. The current collection burden inventory for the NSLP is 10,223,035. This proposed rule will decrease reporting burden by 11.2 hours, increase public disclosure burden by 1,736 hours and increase recordkeeping burden by 14 hours for an overall increase of 1,739 hours as a result of program changes. The revised total burden inventory for the NSLP with this proposed rule is 10,224,774 hours. The average burden per response and the annual burden hours are explained below and summarized in the charts which follow.
FNS is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes.
Grant programs—education; Grant programs—health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs; Surplus agricultural commodities.
Food assistance programs, Grant programs—education, Grant programs—health, Infants and children, Milk, Reporting and recordkeeping requirements.
Grant programs—education; Grant programs—health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs.
Administrative practice and procedure; Food assistance programs; Grant programs—education; Grant programs—health; Infants and children; Reporting and recordkeeping requirements; School breakfast and lunch programs.
Accordingly, 7 CFR parts 210, 215, 220 and 235 are proposed to be amended as follows:
42 U.S.C. 1751–1760, 1779.
The revisions read as follows:
(b) * * *
(19) Maintain direct certification documentation obtained directly from the appropriate State or local agency, or
(20) Retain eligibility documentation submitted by families for a period of 3 years after the end of the fiscal year to which they pertain or as otherwise specified under paragraph (b)(17) of this section.
The revisions and additions read as follows:
(h)
(1) * * * When required by the administrative review process set forth in § 210.18, the State agency must conduct a weighted nutrient analysis to evaluate the average levels of calories, saturated fat, and sodium of the lunches offered to students in grades K and above during one week of the review period. * * *
(i)
(3) * * *
(i)
(j)
(o) * * *
(5)
The additions read as follows:
(d) * * * The school food authority's policies, procedures, and records must account for the receipt, full value, proper storage and use of donated foods.
(g)
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(d)
(1)
(2)
(e)
(1)
(2)
(i) Selection of additional schools to meet the minimum number of schools required under paragraph (e)(1) of this section, must be based on the following criteria:
(A) Elementary schools with a free average daily participation of 100 or more and a free participation factor of 97 percent or more;
(B) Secondary schools with a free average daily participation of 100 or more and a free participation factor of 77 percent or more; and
(C) Combination schools with a free average daily participation of 100 or more and a free participation factor of 87 percent or more. A combination school means a school with a mixture of elementary and secondary grades.
(ii) When the number of schools selected on the basis of the criteria established in paragraph (e)(2)(i) of this section is not sufficient to meet the minimum number of schools required under paragraph (e)(1) of this section, the additional schools selected for review must be identified using State agency criteria which may include low participation schools; recommendations from a food service director based on findings from the on-site visits or the claims review process required under § 210.8(a); or any school in which the daily lunch counts appear questionable (
(iii) In selecting schools for an administrative review of the School Breakfast Program, State agencies must follow the selection criteria set forth in this paragraph and FNS'
(A) In school food authorities operating only the breakfast program, State agencies must review the number of schools set forth in Table A in paragraph (e)(1) of this section.
(B) In school food authorities operating both the lunch and breakfast programs, State agencies must review the breakfast program in 50 percent of the schools selected for an administrative review under paragraph (e)(1) of this section that operate the breakfast program.
(C) If none of the schools selected for an administrative review under paragraph (e)(1) of this section operates the breakfast program, but the school food authority operates the program elsewhere, the State agency must follow procedures in the FNS
(3)
(i)
(ii)
(iii)
(iv)
(4)
(5)
(f)
(1)
(2)
(i) The timeframes covered by the administrative review includes the review period and the day of review, as defined in paragraph (b) of this section.
(ii) Subject to FNS approval, the State agency may conduct a review early in the school year, prior to the submission of a Claim for Reimbursement. In such cases, the review period must be the prior month of operation in the current school year, provided that such month includes at least 10 operating days.
(3)
(g)
(1)
(i)
(ii)
(A) The daily lunch counts, by type, for the review period are more than the product of the number of children determined by the school/school food authority to be eligible for free, reduced price, and paid lunches for the review period times an attendance factor. If the lunch count, for any type, appears questionable or significantly exceeds the product of the number of eligibles, for that type, times an attendance factor, documentation showing good cause must be available for review by the State agency.
(B) For each school selected for review, each type of food service line provides accurate point of service lunch counts, by type, and those lunch counts are correctly counted and recorded. If an alternative counting system is employed (in accordance with § 210.7(c)(2)), the State agency shall ensure that it provides accurate counts of reimbursable lunches, by type, and is correctly implemented as approved by the State agency.
(C) For each school selected for review, all lunches are correctly counted, recorded, consolidated and reported for the day they are served.
(2)
(i)
(A) Review menu and production records for the reviewed schools for a minimum of one school week (
(
(
(B) On the day of review, the State agency must:
(
(
(
(ii)
(iii)
(h)
(1)
(i)
(ii)
(iii)
(iv)
(2)
(i)
(A) Confirm the free and reduced price policy statement, as required in § 245.10 of this chapter, is implemented as approved.
(B) Ensure that the process used to verify children's eligibility for free and reduced price meals in a sample of household applications is consistent with the verification requirements, procedures, and deadlines established in § 245.6a of this chapter.
(C) Determine that, for each reviewed school, the lunch count system does not overtly identify children eligible for free and reduced price lunches, as required under § 245.8 of this chapter.
(D) Review at least 10 denied applications to evaluate whether the determining official correctly denied applicants for free and reduced price lunches, and whether denied households were provided notification in accordance with § 245.6(c)(7)of this chapter.
(E) Confirm that a second review of applications has been conducted and that information has been correctly reported to the State agency as required in § 245.11, if applicable.
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(i)
(2)
(3)
(j)
(1)
(2)
(k)
(1)
(i) The State agency must withhold all Program payments to a school food authority if documented corrective action for critical area violations is not provided with the deadlines specified in paragraph (j)(2) of this section; and/or
(ii) The State agency must withhold all Program payments to a school food authority if the State agency finds that corrective action for critical area violation was not completed; and/or
(iii) The State agency may withhold Program payments to a school food authority at its discretion, if the State agency found a critical area violation on a previous review and the school food authority continues to have the same error for the same cause; and/or
(iv) For general area violations, the State agency may withhold Program payments to a school food authority at its discretion, if the State agency finds that documented corrective action is not provided within the deadlines specified in paragraph (j)(2) of this section, corrective action is not complete, or corrective action was not taken as specified in the documented corrective action.
(2)
(3)
(4)
(l)
(1)
(i) For certification and benefit issuance errors cited under paragraph (g)(1)(i) of this section, the total number of free and reduced price meals claimed must be adjusted to reflect the State calculated free and reduced price certification and benefit issuance adjustment factors, respectively. The free adjustment factor is the ratio of the State agency count of students certified as eligible for free meals divided by the SFA count of students certified as eligible for free meals. The reduced price adjustment factor is the ratio of the State agency count of students certified as eligible for reduced price meals divided by the SFA count of students certified as eligible for reduced price meals.
(ii) For meal counting and claiming errors cited under paragraph (g)(1)(ii) of this section, the State agency must
(2)
(i) For missing food components and/or missing production records cited under paragraph (g)(2) of this section, the State agency must apply fiscal action.
(ii) For repeated violations involving milk type and vegetable subgroups cited under paragraph (g)(2) of this section, the State agency must apply fiscal action as follows:
(A) If an unallowable milk type is offered or there is no milk variety, any meals selected with the unallowable milk type or when there is no milk variety must also be disallowed/reclaimed; and
(B) If one vegetable subgroup is not offered over the course of the week reviewed, the reviewer should evaluate the cause(s) of the error to determine the appropriate fiscal action. All meals served in the deficient week may be disallowed/reclaimed.
(iii) For repeated violations involving food quantities and whole grain-rich foods cited under paragraph (g)(2) of this section, the State agency has discretion to apply fiscal action as follows:
(A) If the meals contain insufficient quantities of the required food components, the affected meals may be disallowed/reclaimed;
(B) If no whole grain-rich foods are offered during the week of review, meals for the entire week of review may be disallowed and/or reclaimed;
(C) If insufficient whole grain-rich foods are offered during the week of review, meals for one or more days during the week of review may be disallowed/reclaimed.
(D) If a weekly vegetable subgroup is offered in insufficient quantity to meet the weekly vegetable subgroup requirement, meals for one day of the week of review may be disallowed/reclaimed; and
(E) If the amount of juice offered exceeds the weekly limitation, meals for the entire week of review may be disallowed/reclaimed.
(iv) For repeated violations of calorie, saturated fat, sodium, and trans fat dietary specifications cited under paragraph (g)(2)(ii) of this section, the State agency has discretion to apply fiscal action to the reviewed school as follows:
(A) If the average meal offered over the course of the week of review does not meet one of the dietary specifications, meals for the entire week of review may be disallowed/reclaimed; and
(B) Fiscal action is limited to the school selected for the targeted menu review and must be supported by a nutrient analysis of the meals at issue using USDA-approved software.
(v) The following conditions must be met prior to applying fiscal action as described in paragraphs (l)(2)(ii) through (iv) of this section:
(A) Technical assistance has been given by the State agency;
(B) Corrective action has been previously required and monitored by the State agency; and
(C) The school food authority remains noncompliant with the meal requirements established in part 210 and part 220 of this chapter.
(3)
(i)
(ii)
(A) If corrective action occurs during the on-site review month or after, the State agency would be required to apply fiscal action from the point corrective action occurs back through the beginning of the on-site review month,
(B) If corrective action occurs during the review period, the State agency would be required to apply fiscal action from the point corrective action occurs back through the beginning of the review period;
(C) If corrective action occurs prior to the review period, no fiscal action would be required; and
(D) If corrective action occurs in a claim month between the review period and the on-site review month, the State agency would apply fiscal action only to the review period.
(4)
(m)
(1) Post a summary of the most recent final administrative review results for each school food authority on the State agency's publicly available Web site. The summary must cover meal access and reimbursement, meal patterns and nutritional quality of school meals, school nutrition environment (including food safety, local school wellness policy, and competitive foods), civil rights, and program participation, in a format prescribed by FNS. It must be posted no later than 30 days after the State agency provides the results of administrative review to the school food authority; and
(2) Make a copy of the final administrative review report upon request.
(n)
(o)
(1) Criteria for selecting schools for administrative reviews in accordance with paragraphs (e)(2)(ii) and (i)(2)(ii) of this section.
(2) Documentation demonstrating compliance with the statistical sampling requirements in accordance with paragraph (g)(1)(i)(A)(
(p)
(1) The written request for a review shall be postmarked within 15 calendar days of the date the appellant received the notice of the denial of all or a part of the Claim for Reimbursement or withholding of payment, and the State agency shall acknowledge the receipt of the request for appeal within 10 calendar days;
(2) The appellant may refute the action specified in the notice in person and by written documentation to the review official. In order to be considered, written documentation must be filed with the review official not later than 30 calendar days after the appellant received the notice. The appellant may retain legal counsel, or may be represented by another person. A hearing shall be held by the review official in addition to, or in lieu of, a review of written information submitted by the appellant only if the appellant so specifies in the letter of request for review. Failure of the appellant school food authority's representative to appear at a scheduled hearing shall constitute the appellant school food authority's waiver of the right to a personal appearance before the review official, unless the review official agrees to reschedule the hearing. A representative of the State agency shall be allowed to attend the hearing to respond to the appellant's testimony and to answer questions posed by the review official;
(3) If the appellant has requested a hearing, the appellant and the State agency shall be provided with at least 10 calendar days advance written notice, sent by certified mail, or its equivalent, or sent electronically by email or facsimile, of the time, date and place of the hearing;
(4) Any information on which the State agency's action was based shall be available to the appellant for inspection from the date of receipt of the request for review;
(5) The review official shall be an independent and impartial official other than, and not accountable to, any person authorized to make decisions that are subject to appeal under the provisions of this section;
(6) The review official shall make a determination based on information provided by the State agency and the appellant, and on program regulations;
(7) Within 60 calendar days of the State agency's receipt of the request for review, by written notice, sent by certified mail, or its equivalent, or electronically by email or facsimile, the review official shall inform the State agency and the appellant of the determination of the review official. The final determination shall take effect upon receipt of the written notice of the final decision by the school food authority;
(8) The State agency's action shall remain in effect during the appeal process; and
(9) The determination by the State review official is the final administrative determination to be afforded to the appellant.
(q)
The revision reads as follows:
(a) * * *
(2)
42 U.S.C. 1772 and 1779.
(b) * * *
(2) * * * Compliance reviews of participating schools shall focus on the reviewed school's compliance with the required certification, counting, claiming, and milk service procedures.* * *
42 U.S.C. 1773, 1779, unless otherwise noted.
(i)
(j)
(d) The school food authority shall establish internal controls which ensure the accuracy of breakfast counts prior to the submission of the monthly Claim for Reimbursement. At a minimum, these internal controls shall include: An on-site review of the breakfast counting and claiming system employed by each school within the jurisdiction of the school food authority; comparisons of daily free, reduced price and paid breakfast counts against data which will assist in the identification of breakfast counts in excess of the number of free, reduced price and paid breakfasts served each day to children eligible for such breakfasts; and a system for following up on those breakfast counts which suggest the likelihood of breakfast counting problems.
(1)
(2)
The revisions read as follows:
(f) * * *
(2) State agencies must conduct administrative reviews of the school meal programs specified in § 210.18 of this chapter to ensure that schools participating in the designated programs comply with the provisions of this title. The reviews of selected schools must focus on compliance with the critical and/or general areas of review identified in § 210.18 of this chapter for each program, as applicable, and must be conducted as specified in the FNS
(3) For the purposes of compliance with the meal requirements in §§ 220.8 and 220.23, the State agency must follow the provisions specified in § 210.18(g) of this chapter, as applicable.
(4) State agency assistance must include visits to participating schools selected for administrative reviews under § 210.18 of this chapter to ensure compliance with program regulations and with the Department's nondiscrimination regulations (part 15 of this title), issued under title VI, of the Civil Rights Act of 1964.
(g) State agencies shall adequately safeguard all assets and monitor resource management as required under § 210.18 of this chapter, and in conformance with the procedures specified in the FNS
Secs. 7 and 10 of the Child Nutrition Act of 1966, 80 Stat. 888, 889, as amended (42 U.S.C. 1776, 1779).
(1) All school food authorities that participate in the National School Lunch Program (7 CFR part 210) and have enrollments of 40,000 children or more each; or
(2) If there are less than two school food authorities with enrollments of 40,000 or more, the two largest school food authorities that participate in the National School Lunch Program (7 CFR part 210) and have enrollments of 2,000 children or more each.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Albion Municipal Airport, Albion, NE; Rock County Airport, Bassett, NE; and Jim Kelly Field Airport, Lexington, NE. Decommissioning of the non-directional radio beacons (NDB) and/or cancellation of NDB approaches due to advances in Global Positioning System (GPS) capabilities has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports. Also, the geographic coordinates would be updated for Rock County Airport and Jim Kelly Field Airport.
0901 UTC. Comments must be received on or before June 25, 2015.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2015–0841/Airspace Docket No. 15–ACE–3, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–8783.
Roger Waite, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2015–0841/Airspace Docket No. 15–ACE–3.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document proposes to amend FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures (SIAP) at Albion Municipal Airport, Albion, NE; Rock County Airport, Bassett, NE; and Jim Kelly Field Airport, Lexington, NE. Airspace reconfiguration is necessary due to the decommissioning of NDBs and/or the cancellation of the NDB approach at each airport. Controlled airspace is necessary for the safety and management of IFR operations for SIAPs at the airports. The geographic coordinates for Rock County Airport and Jim Kelly Field would be updated to be in concert with the FAAs aeronautical database.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9Y, dated August 6, 2014 and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at the Nebraska airports listed in this NPRM.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Albion Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Rock County Airport.
That airspace extending upward from 700 feet above the surface within an 8-mile radius of Jim Kelly Field.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Jonesboro Airport, Jonesboro, LA, and David G. Joyce Airport, Winnfield, LA. Decommissioning of the non-directional radio beacons (NDB) and/or cancellation of NDB approaches due to advances in Global Positioning System (GPS) capabilities has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports.
0901 UTC. Comments must be received on or before June 25, 2015.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. You must identify the docket number FAA–2015–0843/Airspace Docket No. 15–ASW–5, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15. For further information, you can contact the Airspace Policy and Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202–267–8783.
Roger Waite, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321–7652.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2015–0843/Airspace Docket No. 15–ASW–5.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267–9677, to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document proposes to amend FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by modifying Class E airspace extending upward from 700 feet above the surface for standard instrument approach procedures (SIAP) at Jonesboro Airport, Jonesboro, LA, and David G. Joyce Airport, Winnfield, LA. Airspace reconfiguration is necessary due to the decommissioning of NDBs and/or the cancellation of the NDB approach at each airport. Controlled airspace is necessary for the safety and management of IFR operations for SIAPs at the airports.
Class E airspace areas are published in Paragraph 6005 of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at the Louisiana airports listed in this NPRM.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of Jonesboro Airport.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of David G. Joyce Airport.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance regarding the application of the modified carryover basis rules of section 1022 of the Internal Revenue Code (Code). Specifically, the proposed regulations will modify provisions of the Treasury Regulations involving basis rules by including a reference to section 1022 where appropriate. The regulations will affect property transferred from certain decedents who died in 2010. The regulations reflect changes to the law made by the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.
Written or electronic comments and requests for a public hearing must be received by August 10, 2015.
Send submissions to CC:PA:LPD:PR (REG–107595–11), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG–107595–11), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Mayer R. Samuels, (202) 317–6859; concerning submissions of comments or a request for a public hearing, Oluwafunmilayo Taylor, (202) 317–6901 (not toll-free numbers).
Subtitle A of title V of the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107–16 (EGTRRA) enacted section 2210 of the Code, which made chapter 11 (the estate tax) inapplicable to the estate of any decedent who died in 2010. Subtitle E of title V of EGTRRA enacted section 1022 regarding a modified carryover basis system applicable during 2010. On December 17, 2010, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Public Law 111–312 (TRUIRJCA) became law, and section 301(a) of TRUIRJCA retroactively reinstated the estate and generation-skipping transfer taxes. However, section 301(c) of TRUIRJCA allows the executor of the estate of a decedent who died in 2010 to elect to apply the Code as though section 301(a) of TRUIRJCA did not apply with respect to chapter 11 and with respect to property acquired or passing from the decedent (within the meaning of section 1014(b) of the Code). Thus, section 301(c) of TRUIRJCA allows the executor of the estate of a decedent who died in 2010 to elect not to have the provisions of chapter 11 apply to the decedent's estate, but rather to have the provisions of section 1022 apply (Section 1022 Election).
Generally, under section 1014(a), the basis of property in the hands of a person acquiring the property from a decedent or to whom the property passed from a decedent is the fair market value of the property at the date of the decedent's death. However, if the decedent died in 2010 and the decedent's executor, as defined in section 2203, makes the Section 1022 Election, then the basis of property in the hands of a person acquiring the property from that decedent is governed by section 1022 and not by section 1014.
Section 1022(a)(1) generally provides that property acquired from a decedent
If the decedent's adjusted basis in the property is less than the property's FMV on the decedent's date of death, sections 1022(b) and 1022(c) allow the executor of a decedent's estate to allocate additional basis (Basis Increase) to certain assets that both are owned by the decedent (within the meaning of section 1022(d)) at death and are acquired from the decedent (within the meaning of section 1022(e)). However, the property's total basis may not exceed the property's FMV on the date of death.
Although section 1022 was applicable only to decedents dying in calendar year 2010, basis determined pursuant to that section will continue to be relevant until all of the property whose basis is determined under that section has been sold or otherwise disposed of. Accordingly, the existing regulations need to be updated to incorporate appropriate references to basis determined under section 1022.
These proposed regulations incorporate into the existing regulations, as appropriate, references to section 1022 to ensure that references to basis also include basis as determined under that section. Some changes involve simply inserting the words “or section 1022”, “and 1022”, or similar references. Others (such as § 1.742–1) require the insertion of a new sentence or an example to expressly address the applicability of section 1022. A few changes (such as proposed § 1.684–3) require the inclusion of a new section to provide a detailed explanation of the application of section 1022 in the particular context of the existing regulation. The proposed regulations also provide cross references for section 1022 when appropriate and make other minor, non-substantive changes. Language revisions serve solely to conform the existing regulations to the provisions of section 1022 and no additional changes are intended. The more significant changes are briefly described below.
Section 1.48–12(b)(2)(vii)(B) of the proposed regulations provides that, if a transferee's basis is determined under section 1022, any qualified rehabilitation expenditures incurred by the decedent under section 48 within the measuring period that are treated as having been incurred by the transferee decrease the transferee's basis for purposes of the substantial rehabilitation test.
Section 1.83–4(b)(1) of the proposed regulations provides that, if property to which section 83 applies is acquired by any person while such property is substantially nonvested, such person's basis in the property reflects any adjustments to basis provided under section 1022, as well as under sections 1015 and 1016.
Sections 1.179–4(c)(1)(iv), 1.267(d)–1(a)(3), 1.336–1(b)(5)(i)(A) and 1.355–6(d)(1)(i)(A)(
Section 1.197–2(h)(5)(i) of the proposed regulations provides that the anti-churning rules of § 1.197–2(h) do not apply to the acquisition of a section 197(f)(9) intangible if the acquiring taxpayer's basis in the intangible is determined under section 1022.
Section 1.306–3(e) of the proposed regulations provides that section 306 stock continues to be classified as section 306 stock if the basis of such stock is determined by reference to the decedent-stockholder's basis under section 1022. In addition, the revision of the last sentence of the existing regulation clarifies the reference to “the optional valuation date under section 1014” by changing the language to refer expressly to the election to use the alternate valuation date under section 2032.
Section 1.382–9 of the proposed regulations provides that for purposes of § 1.382–9(d)(5)(i), the definition of qualified transfer is expanded to include situations where the transferee's basis in the indebtedness is determined under section 1022.
Section 1.421–2(c)(4) of the proposed regulations provides that an option granted under an employee stock purchase plan acquires a basis, determined under section 1014 (or section 1022, if applicable), only if the transfer of the share pursuant to the exercise of such option qualifies for the special tax treatment provided by section 421(a).
Section 1.423–2(k)(2) of the proposed regulations provides that if the special rules provided under § 1.423–2(k) are applicable to a share of stock upon the death of an employee, then the basis of the share in the hands of the estate or the person receiving the stock by bequest or inheritance shall be determined under section 1014 (or section 1022, if applicable).
Section 1.467–7(c)(2) of the proposed regulations provides that section 467 recapture does not apply to a disposition on death of the transferor if the basis of the property in the hands of the transferee is determined under section 1022. However, section 467 recapture does apply to property that constitutes a right to receive an item of income in respect of a decedent. Section 1.467–7(c)(4) of the proposed regulations provides that, if the transferee subsequently disposes of the property in a transaction to which § 1.467–7(a) applies, the prior understated inclusion is computed by taking into account the amounts attributable to the period of the transferor's ownership of the property prior to the first disposition.
Section 1.617–3(d)(5)(ii)(
Section 684 generally requires gain to be recognized on any transfer of appreciated property by a U.S. person to a foreign non-grantor trust or foreign estate. For decedents dying in 2010, section 684 also applies to certain transfers of property by reason of death to nonresident aliens. Gain is determined by reference to the fair market value of the property over the adjusted basis of such property in the hands of the transferor. Section 1.684–3(c) currently provides that, in the case of a transfer of property by reason of death of a U.S. transferor to a foreign non-grantor trust, no gain recognition is required if the basis of the property in the hands of the trust is determined under section 1014(a).
Section 1.684–3(c) of the proposed regulations provides that this rule is modified to clarify the application of section 684 to transfers of property by reason of death of U.S. transferor decedents dying in 2010. If the executor
Section 1.742–1(a) of the proposed regulations provides that the basis of a partnership interest acquired from a decedent who died in 2010, and whose executor made a Section 1022 Election, is the lower of the adjusted basis of the decedent or fair market value of the interest at the date of decedent's death. The basis of property acquired from a decedent may be further increased under section 1022(b) and/or 1022(c), but not above the fair market value of the interest on the date of the decedent's death.
Section 1.995–4(d)(2) of the proposed regulations provides that the period during which a shareholder of stock in a DISC has held stock includes the period he is considered to have held it by reason of the application of section 1223 and, if his basis is determined in whole or in part under the provisions of section 1022, the holding period of the decedent.
Section 1.1014–4(a) of the proposed regulations provides that the basis of property acquired from a decedent, including basis determined under section 1022, is uniform in the hands of every person having possession or enjoyment of the property at any time, whether obtained under the will or other instrument or under the laws of descent and distribution.
Section 1.1014–5(b) of the proposed regulations provides that, in determining gain or loss from the sale or other disposition of a term interest in property the adjusted basis of which is determined pursuant to section 1022, that part of the adjusted uniform basis assignable under the rules of § 1.1014–5(a) to the interest sold or otherwise disposed of is disregarded to the extent and in the manner provided by section 1001(e).
Section 1.1223–1(b) of the proposed regulations provides that the holding period under section 1223 of the recipient of property acquired from a decedent who died in 2010, and whose executor made a Section 1022 Election, includes the period that the property was held by the decedent.
Sections 1.1245–2(c)(2)(ii)(
Section 1.1245–4(a)(1) of the proposed regulations provides that no gain is recognized under section 1245(a)(1) upon a transfer of section 1245 property from a decedent whose executor made the Section 1022 Election.
Section 1.1250–4(c)(5) of the proposed regulations provides that the holding period under section 1250(e) for the recipient of property acquired from a decedent who died in 2010, and whose executor made a Section 1022 Election, includes the period that the property was held by the decedent.
Section 1.1254–2(a)(1) of the proposed regulations provides that no gain is recognized under section 1254(a)(1) upon a transfer of natural resource recapture property from a decedent who died in 2010 and whose executor made a Section 1022 Election.
Sections 1.1254–3(b), 1.1254–4(e)(4), and 1.1254–5(c)(2)(iv) of the proposed regulations provide that, for purposes of determining the amount of section 1254 costs from the disposition of natural resource recapture property, the term “gift” is expanded to include the transfer of property with a basis that is determined under section 1022.
Section 1.1296–1(d)(4) of the proposed regulations provides that the basis of stock of a passive foreign investment company for which a section 1296 election was in effect as of the date of the decedent's death that is acquired from a decedent is the lower of the adjusted basis of the stock in the hands of the decedent immediately before his death or the basis that would have been determined under section 1014 or section 1022, as applicable, without regard to this paragraph.
Section 1.1312–7(b) of the proposed regulations provides that the taxpayer with respect to whom the erroneous treatment occurred must be a taxpayer who had title to the property at the time of the erroneously treated transaction and from whom, mediately or immediately, the taxpayer with respect to whom the determination is made derived title, if the basis of the property in the hands of the taxpayer with respect to whom the determination is made is determined under section 1022.
These regulations are proposed to apply on and after the date the regulations are published as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because these regulations do not impose a collection of information requirement on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. All comments will be available at
The principal author of these regulations is Mayer R. Samuels, Office of the Associate Chief Counsel
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(b) * * *
(2) * * *
(vii) * * *
(B) * * * If a transferee's basis is determined under section 1014 or section 1022, any expenditures incurred by the decedent within the measuring period that are treated as having been incurred by the transferee under paragraph (c)(3)(ii) of this section shall decrease the transferee's basis for purposes of the substantial rehabilitation test.
(g)
(b) * * *
(1) * * * Such basis shall also reflect any adjustments to basis provided under sections 1015, 1016, and 1022.
(d)
(c) * * *
(1) * * *
(iv) The property is not acquired by purchase if the basis of the property in the hands of the person acquiring it is determined in whole or in part by reference to the adjusted basis of such property in the hands of the person from whom acquired, is determined under section 1014(a), relating to property acquired from a decedent, or is determined under section 1022, relating to the basis of property acquired from certain decedents who died in 2010. * * *
The revision and addition read as follows:
(a) * * * Except as provided in paragraphs (b), (c), and (d) of this section, the provisions of §§ 1.179–1 through 1.179–5 apply for property placed in service by the taxpayer in taxable years ending after January 25, 1993. * * *
(d)
(h) * * *
(5) * * *
(i) The acquisition of a section 197(f)(9) intangible if the acquiring taxpayer's basis in the intangible is determined under section 1014(a) or 1022; or
(12) * * *
(viii)
(l) * * *
(5)
(a) * * *
(3) The benefit of the general rule is available only to the original transferee but does not apply to any original transferee (for example, a donee or a person acquiring property from a decedent where the basis of property is determined under section 1014 or 1022) who acquired the property in any manner other than by purchase or exchange.
* * * The provisions of § 1.267(d)–1(a)(3) relating to section 1022 are effective on and after the date these regulations are published as final regulations in the
(a)
(b)
(e) * * * Section 306 stock ceases to be so classified if the basis of such stock is determined by reference to its fair market value on the date of the decedent-stockholder's death under section 1014 or the optional valuation date under section 2032. Section 306 stock continues to be so classified if the basis of such stock is determined under section 1022.
The provisions of §§ 1.306–1 through 1.306–3 are applicable on or after June 22, 1954. The provisions of § 1.306–3 relating to section 1022 are effective on and after the date these regulations are published as final regulations in the
(b) * * *
(5) * * *
(i) * * *
(A) The basis of the stock in the hands of the purchaser is not determined in whole or in part by reference to the adjusted basis of such stock in the hands of the person from whom the stock is acquired, is not determined under section 1014(a) (relating to property acquired from a decedent), or is not determined under section 1022 (relating to the basis of property acquired from certain decedents who died in 2010);
* * * The provisions of § 1.336–1(b)(5)(i)(A) relating to section 1022 are effective on and after the date these regulations are published as final regulations in the
(d) * * *
(1) * * *
(i) * * *
(A) * * *
(
(g)
(d) * * *
(5) * * *
(ii) * * *
(D) The transferee's basis in the indebtedness is determined under section 1014, 1015, or 1022 or with reference to the transferor's basis in the indebtedness;
(6)
The revisions and addition read as follows:
(c) * * *
(4)(i)(
(ii) If a statutory option is not exercised by the estate of the individual to whom the option was granted, or by the person who acquired such option by bequest or inheritance or by reason of the death of such individual, the option shall be considered to be property that constitutes a right to receive an item of income in respect of a decedent to which the rules of sections 691 and 1014(c) (or section 1022(f), if applicable) apply.
(f)
(3)
The revision and addition read as follows:
(k) * * *
(2) * * * If the special rules provided in this paragraph (k) are applicable to a share of stock upon the death of an employee, then the basis of the share in the hands of the estate or the person receiving the stock by bequest or inheritance shall be determined under section 1014 or under section 1022, if applicable, and shall not be increased by reason of the inclusion upon the decedent's death of any amount in the decedent's gross income under this paragraph (k). * * *
(l) * * * The provisions of § 1.423–2 relating to section 1022 are effective on and after the date these regulations are published as final regulations in the
(c) * * *
(2) * * * For determination of basis in the hands of the survivor where joint ownership is terminated by the death of one of the owners, see section 1014 or section 1022, if applicable.
(g) * * *
(3)
(c) * * *
(2)
(4) * * * If the recapture amount with respect to a disposition of property (the first disposition) is limited under paragraph (c)(1), (c)(2) (if the basis of the property in the hands of the transferee is determined under section 1022), or (c)(3) of this section and the transferee subsequently disposes of the property in a transaction to which paragraph (a) of this section applies, the prior understated inclusion determined under paragraph (b)(2) of this section is computed by taking into account the amounts attributable to the period of the transferor's ownership of the property prior to the first disposition. * * *
(f)
(d) * * *
(5) * * *
(ii) * * *
(
(
(
(c) * * *
(1)(i) * * * For purposes of this paragraph (c), the term “gift” means, except to the extent that paragraph (c)(1)(ii) of this section applies, a transfer of mining property that, in the hands of the transferee, has a basis determined under the provisions of section 1015(a) or 1015(d) (relating to basis of property acquired by gift) or section 1022 (relating to the basis of property acquired from certain decedents who died in 2010). * * *
Sections 1.617–3 and 1.617–4 apply on and after the date these regulations are published as final regulations in the
(c)
(2)
(a) Sections 1.684–1 through 1.684–4 apply to transfers of property to foreign trusts and foreign estates after August 7, 2000, except as provided in paragraph (b) of this section.
(b) In the case a U.S. transferor decedent dying in 2010, § 1.684–3(c) applies to transfers of property to foreign trusts, foreign estates, and
(a) * * * The provisions of section 1014(a), relating to the basis of property acquired from a decedent, and section 1022, relating to the basis of property acquired from certain decedents who died in 2010, do not apply to these amounts in the hands of the estate and such persons. See sections 1014(c) and 1022(f).
(c)
(a)
(b)
(k) * * *
(2) * * *
(ii)
(l)
The revisions read as follows:
(a) * * *
(4) * * *
(i) * * *
(C)
(b) * * *
(4) * * *
(i) * * * Where a partnership interest is transferred as a result of the death of a partner, under section 1014(c) or section 1022(f), the transferee's basis in its partnership interest is not adjusted for that portion of the interest, if any, that is attributable to items representing income in respect of a decedent under section 691. * * *
(e)
(2)
(d) * * *
(2) * * * For purposes of this section, the period during which a shareholder has held stock includes the period he is considered to have held it by reason of the application of section 1223 and, if his basis is determined in whole or in part under the provisions of section 1014(d) (relating to special rule for DISC stock acquired from decedent) or section 1022 (relating to property acquired from certain decedents who died in 2010), the holding period of the decedent. * * *
(f)
(a) * * * Section 1001(e) and paragraph (f) of this section prescribe the method of computing gain or loss upon the sale or other disposition of a term interest in property the adjusted basis (or a portion) of which is determined pursuant, or by reference, to section 1014 (relating to the basis of property acquired from a decedent), section 1015 (relating to the basis of property acquired by gift or by a transfer in trust), or section 1022 (relating to the basis of property acquired from certain decedents who died in 2010).
(f) * * *
(1)
(i) Is determined pursuant to sections 1014, 1015, or 1022; and
(ii) Is also a portion of the adjusted uniform basis of the entire property, a subsequent sale or other disposition of such term interest by the corporation will be subject to the provisions of section 1001(e) and this paragraph (f) to the extent that the basis of the term interest so sold or otherwise disposed of is determined by reference to its basis in the hands of the transferor as provided by section 362(a). See paragraph (f)(2) of this section for rules relating to the characterization of stock received by the transferor of a term interest in property in connection with a transaction to which section 351 applies. That portion of the adjusted uniform basis of the entire property that is assignable to such interest at the time of its sale or other disposition shall be determined under the rules provided in § 1.1014–5. Thus, gain or loss realized from a sale or other disposition of a term interest in property shall be determined by comparing the amount of the proceeds of such sale with that part of the adjusted basis of such interest that is not a portion of the adjusted uniform basis of the entire property.
(5)
(a)
(d)
(a) * * *
(1) The basis of property acquired from a decedent, as determined under section 1014(a) or section 1022, is uniform in the hands of every person having possession or enjoyment of the property at any time under the will or other instrument or under the laws of descent and distribution. * * *
(2) * * * Accordingly, there is a common acquisition date for all titles to property acquired from a decedent within the meaning of section 1014 or section 1022, and, for this reason, a common or uniform basis for all such interests. * * *
(d)
(b)
(d) [Reserved]
(e)
(b) * * * Similarly, the period for which property acquired from a decedent who died in 2010 was held by the decedent must be included in determining the period during which the property was held by the recipient, if the recipient's basis in the property is determined under section 1022.
(l)
(c) * * *
(2) * * *
(ii) The transactions referred to in paragraph (c)(2)(i) of this section are:
(
(
(
(
(d)
(a) * * *
(3) Even though property may not be of a character subject to the allowance for depreciation in the hands of the taxpayer, such property may nevertheless be section 1245 property if the taxpayer's basis for the property is determined by reference to its basis in the hands of a prior owner of the property and such property was of a character subject to the allowance for depreciation in the hands of such prior owner, or if the taxpayer's basis for the property is determined by reference to the basis of other property that in the hands of the taxpayer was property of a character subject to the allowance for depreciation, or if the taxpayer's basis for the property is determined under section 1022 and such property was of a character subject to the allowance for depreciation in the hands of the decedent. Thus, for example, if a father uses an automobile in his trade or business during a period after December 31, 1961, and then gives the automobile to his son as a gift for the son's personal use, the automobile is section 1245 property in the hands of the son.
(d)
(a) * * *
(1) * * * For purposes of this paragraph (a), the term “gift” means, except to the extent that paragraph (a)(3) of this section applies, a transfer of property that, in the hands of the transferee, has a basis determined under the provisions of section 1015(a) or 1015(d) (relating to basis of property acquired by gifts) or section 1022 (relating to basis of property acquired from certain decedents who died in 2010). * * *
(i)
(c) * * *
(5) A transfer at death where the basis of the property in the hands of the transferee is determined under section 1022.
(h)
(a) * * *
(1) * * * For purposes of this paragraph (a), the term “gift” means, except to the extent that paragraph (a)(2) of this section applies, a transfer of natural resource recapture property that, in the hands of the transferee, has a basis determined under the provisions
(b) * * *
(2) * * *
(ii) A transaction described in section 1041(a);
(iii) A disposition described in § 1.1254–2(c)(3) (relating to certain tax-free transactions); or
(iv) A transfer at death where basis of property in the hands of the transferee is determined under section 1022.
(e) * * *
(4) * * * If stock is acquired in a transfer that is a gift, in a transfer that is a part sale or exchange and part gift, in a transfer that is described in section 1041(a), or in a transfer at death where the basis of property in the hands of the transferee is determined under section 1022, the amount of section 1254 costs with respect to the property held by the corporation in the acquiring shareholder's hands immediately after the transfer is an amount equal to—
(c) * * *
(2) * * *
(iv) * * * If an interest in a partnership is transferred in a transfer that is a gift, in a transfer that is a part sale or exchange and part gift, in a transfer that is described in section 1041(a), or in a transfer at death where the basis of property in the hands of the transferee is determined under section 1022, the amount of the transferee partner's section 1254 costs with respect to property held by the partnership immediately after the transfer is an amount equal to—
(a) Sections 1.1254–1 through 1.1254–3 and 1.1254–5 are effective with respect to any disposition of natural resource recapture property occurring after March 13, 1995. The rule in § 1.1254–1(b)(2)(iv)(A)(
(b) The provisions of §§ 1.1254–2(a)(1), 1.1254–3(b)(2), 1.1254–4(e)(4), and 1.1254–5(c)(2)(iv) that relate to section 1022 are effective on and after the date these regulations are published as final regulations in the
(d) * * *
(4)
(j)
(b)(1) For this section to apply, the taxpayer with respect to whom the erroneous treatment occurred must be:
(i) The taxpayer with respect to whom the determination is made; or
(ii) A taxpayer who acquired title to the property in the erroneously treated transaction and from whom, mediately or immediately, the taxpayer with respect to whom the determination is made derived title in such a manner that he will have a basis ascertained by reference to the basis in the hands of the taxpayer who acquired title to the property in the erroneously treated transaction; or
(iii) A taxpayer who had title to the property at the time of the erroneously treated transaction and from whom, mediately or immediately, the taxpayer with respect to whom the determination is made derived title, if the basis of the property in the hands of the taxpayer with respect to whom the determination is made is determined under section 1015(a) (relating to the basis of property acquired by gift) or section 1022 (relating to the basis of property acquired from certain decedents who died in 2010). (2) No adjustment is authorized with respect to the transferor of the property in a transaction upon which the basis of the property depends, when the determination is with respect to the original transferee or a subsequent transferee of the original transferee.
(d)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Proposed rule.
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs). This will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order (E.O.) 13693 of March 25, 2015, Planning for Sustainability in the Next Decade. E.O. 13693 subsumes both E.O. 13423 of January 24, 2007, Strengthening Federal Environmental, Energy, and Transportation Management as well as E.O. 13514 of October 5, 2009, Federal Leadership in Environmental, Energy, and Economic Performance.
Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before July 10, 2015 to be considered in the formation of the final rule.
Submit comments in response to FAR Case 2014–026 by any of the following methods:
•
•
Mr. Charles Gray, Procurement Analyst, at 703–795–6328, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAR Case 2014–026.
DoD, GSA, and NASA are proposing to revise the FAR to implement Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high GWP HFCs and allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements formerly required by Executive Order (E.O.) 13514, and now required by E.O. 13693, Planning for Federal Sustainability in the Next Decade.
President Obama issued his Climate Action Plan (CAP), dated June 2013, that includes a broad set of steps designed to slow the effects of climate change, see
In order to address high GWP HFCs, the President directed Federal agencies to lead through both international diplomacy and domestic action. In particular, he directed the U.S. Environmental Protection Agency (EPA) to use its authority through the Significant New Alternatives Policy (SNAP) Program to encourage private sector investment in low-emissions technology by identifying and approving climate-friendly chemicals while prohibiting certain uses of the most climate-harmful chemical alternatives. In addition, the CAP noted “the President has directed his Administration to purchase cleaner alternatives to HFCs whenever feasible and transition over time to equipment that uses safer and more sustainable alternatives”. There are lower GWP alternatives available now for certain applications, and likely more will become available within the next 5 years to replace the higher GWP HFCs that contribute to climate change. Agencies are already reporting emissions of greenhouse gases, including HFCs, as formerly required by E.O. 13514. In order to understand and track the Government's progress to reduce HFC emissions, improved reporting of current HFC usage is necessary to baseline efforts.
Accordingly, DoD, GSA, and NASA are proposing to amend FAR subpart 23.8 to include—
(1) A policy statement at FAR 23.802 reflecting the Government's commitment to minimize the procurement and the potential use, release, or emission of high GWP HFCs that contribute to climate change; and
(2) Procedures at FAR 23.803 that address substitution of lower GWP alternatives where feasible, and referring to EPA's SNAP program to identify acceptable alternatives.
The proposed rule includes contract clauses, prescribed at FAR 23.804, that—
• Give direction to contractors to take steps in furtherance of this policy (including, when feasible, reducing the amount of HFC emissions and substituting lower GWP alternatives as part of the normal equipment maintenance and replacement process); and
• Require limited contractor reporting (
This rule proposes to modify the existing FAR clauses at 52.223–11, Ozone-Depleting Substances, and 52.223–12, Refrigeration Equipment and Air Conditioners, to address high GWP HFCs, as well as ozone-depleting substances. In addition, the rule proposes to add two new clauses specifically focused on use of alternatives, where feasible, in place of high GWP HFCs in aerosol cans (as propellants or solvents) and as foam blowing agents.
The rule proposes to amend FAR part 2 by adding the new definitions of “global warming potential,” “hydrofluorocarbons”, and “high global warming potential hydrofluorocarbons”. The rule also adds in FAR part 2 a definition of “manufactured end product” (currently defined in the FAR clause 52.225–18), with update to the current terminology for product and service code/group, rather, than Federal supply class/group.
This proposed rule will apply to all acquisitions inside the United States and its outlying areas of products or services containing or using high GWP HFCs, including—
• Commercial items that use part 12 procedures; and
• Acquisitions that do not exceed the simplified acquisition threshold.
The reporting requirement applies only for delivery of, or maintenance, service, repair and disposal of, equipment or appliances normally containing 50 pounds or more of HFCs or refrigerant blends containing HFCs.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The change may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule is necessary to implement Executive branch policy stated in the President's Climate Action Plan.
The objective of this rule is to require Federal agencies to procure climate-friendly alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs) and allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements formerly required by Executive Order (E.O.) 13514, and now required by E.O. 13693, Planning for Federal Sustainability in the Next Decade.
Based on FPDS data for FY 2013, this rule will apply to approximately 1,680 small business contractors that provide supplies (including equipment and appliances) to the Federal Government and about 640 small business contractors that provide maintenance, service, repair, or disposal of refrigeration equipment or air conditioners. In addition, although the proposed clauses at 252.223–XX, Aerosols, and 52.223–YY, Foams, do not contain any reporting requirements, these clauses also apply respectively to solicitations and contracts that involve repair or maintenance of electronic or mechanical devices and construction of buildings and facilities.
We estimate an average reporting burden of about 8 hours per year for each of the small businesses providing supplies containing high GWP HFCs or maintenance, service, repair, or disposal of refrigeration equipment or air conditioners.
The rule does not duplicate, overlap, or conflict with any other Federal rules.
We did not identify any significant alternatives to the rule that would accomplish the stated objectives of the President's Climate Action Plan and the Executive Order.
It is necessary for the rule to apply to small entities, because about three-quarters of the affected contractors are small businesses. Every effort has been made to minimize the burdens imposed.
The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2014–026), in correspondence.
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat has submitted a request for approval of a new information collection requirement concerning GWP HFCs to the Office of Management and Budget.
A. Public reporting burden for this collection of information is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
The annual reporting burden estimated as follows:
B. Request for Comments Regarding Paperwork Burden.
Submit comments, including suggestions for reducing this burden, not later than July 10, 2015 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405–0001.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and 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 supporting statement from the General Services Administration, Regulatory
Government procurement.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1, 2, 7, 11, 23, 25, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(b) * * *
(2) * * *
(1) PSC 5510, Lumber and Related Basic Wood Materials;
(2) Product or service group (PSG) 87, Agricultural Supplies;
(3) PSG 88, Live Animals;
(4) PSG 89, Subsistence;
(5) PSC 9410, Crude Grades of Plant Materials;
(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;
(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products;
(8) PSC 9610, Ores;
(9) PSC 9620, Minerals, Natural and Synthetic; and
(10) PSC 9630, Additive Metal Materials.
(p) * * *
(2) Comply with the policy in 11.002(d) regarding procurement of: Biobased products, products containing recovered materials, environmentally preferable products and services (including Electronic Product Environmental Assessment Tool (EPEAT®)-registered electronic products, nontoxic or low-toxic alternatives), ENERGY STAR® and Federal Energy Management Program-designated products, renewable energy, water-efficient products, non-ozone-depleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons;
(d)(1) * * *
(vi) Non-ozone-depleting substances; and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons (subpart 23.8).
(d) Acquiring energy-efficient and water-efficient products and services, environmentally preferable (including EPEAT®-registered, and non-toxic and less toxic) products, products containing recovered materials, biobased products, non-ozone-depleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons;
This subpart sets forth policies and procedures for the acquisition of items that—
(a) Contain, use, or are manufactured with ozone-depleting substances; or
(b) Contain or use high global warming potential hydrofluorocarbons.
(a) Title VI of the Clean Air Act (42 U.S.C. 7671,
(b) Section 706 of Division D, title VII of the Omnibus Appropriations Act, 2009 (Pub. L. 111–8).
(c) Executive Order 13693 of March 25, 2015, Planning for Federal Sustainability in the Next Decade.
(d) Environmental Protection Agency (EPA) regulations, Protection of Stratospheric Ozone (40 CFR part 82).
It is the policy of the Federal Government that Federal agencies—
(a) Implement cost-effective programs to minimize the procurement of materials and substances that contribute to the depletion of stratospheric ozone and/or result in the use, release or
(b) Give preference to the procurement of acceptable alternative chemicals, products, and manufacturing processes that reduce overall risks to human health and the environment by minimizing—
(1) The depletion of ozone in the upper atmosphere; and
(2) The potential use, release, or emission of high global warming potential hydrofluorocarbons.
In preparing specifications and purchase descriptions, and in the acquisition of products and services, agencies shall—
(a) Comply with the requirements of title VI of the Clean Air Act, section 706 of division D, title VII of Pub. L. 111–8, Executive Order 13693, and 40 CFR 82.84(a)(2), (3), (4), and (5);
(b) Substitute acceptable alternatives to ozone-depleting substances, as identified under 42 U.S.C. 7671k, to the maximum extent practicable, as provided in 40 CFR 82.84(a)(1), except in the case of Class I substances being used for specified essential uses, as identified under 40 CFR 82.4(n);
(c) Specify, when feasible, that contractors shall substitute acceptable lower global warming potential alternatives for high global warming potential hydrofluorocarbons in products and services; and
(d) Refer to EPA's Significant New Alternatives Policy (SNAP) program (available at
Except for contracts that will be performed outside the United States and its outlying areas, insert the following clauses:
(a) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons, in solicitations and contracts for—
(1) Refrigeration equipment (in product or service code (PSC) 4110);
(2) Air conditioning equipment (PSC 4120);
(3) Clean agent fire suppression systems/equipment (
(4) Bulk refrigerants and fire suppressants (in PSC 6830);
(5) Solvents, dusters, freezing compounds, mold release agents, and any other miscellaneous chemical specialty that may contain ozone-depleting substances or high global warming potential hydrofluorocarbons (in PSC 6850);
(6) Corrosion prevention compounds, foam sealants, aerosol mold release agents, and any other preservative or sealing compound that may contain ozone-depleting substances or high global warming potential hydrofluorocarbons (in PSC 8030);
(7) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); and
(8) Any other manufactured end products that may contain or be manufactured with ozone-depleting substances.
(b) 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners, in solicitations and contracts that include the maintenance, service, repair, or disposal of—
(1) Refrigeration equipment, such as refrigerators, chillers, or freezers; or
(2) Air conditioners, including air conditioning systems in motor vehicles.
(c) 52.223–XX, Aerosols, in solicitations and contracts—
(1) For products that may contain high global warming potential hydrofluorocarbons as a propellant, or as a solvent; or
(2) That involve maintenance or repair of electronic or mechanical devices.
(d) 52.223–YY, Foams, in solicitations and contracts for—
(1) Products that may contain high global warming potential hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons as a foam blowing agent, such as building foam insulation or appliance foam insulation; or
(2) Construction of buildings or facilities.
(b) * * *
___(35) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (Date) (E.O. 13693).
___(36) 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (Date) (E.O. 13693).
___(37) 52.223–XX, Aerosols (Date) (E.O. 13693).
___(38) 52.223–YY, Foams (Date) (E.O. 13693).
(b) * * *
(1) * * *
(ix) 52.223–11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (Date) (E.O. 13693) (applies to contracts for products as prescribed at FAR 23.804(a)).
(x) 52.223–12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (Date) (E.O. 13693) (Applies to maintenance, service, repair, or disposal of refrigeration equipment and air conditioners).
(xi) 52.223–XX, Aerosols (Date) (E.O. 13693) (Applies to products that may contain high global warming potential hydrofluorocarbons as a propellant or as a solvent; or maintenance or repair of electronic or mechanical devices).
(xii) 52.223–YY, Foams (Date) (E.O. 13693) (Applies to products that may contain high global warming potential hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons as a foam blowing agent; or construction of buildings or facilities.
As prescribed in 23.804(a), insert the following clause:
(a) Definitions.
As used in this clause—
(1) Class I, including, but not limited to, chlorofluorocarbons, halons, carbon tetrachloride, and methyl chloroform; or
(2) Class II, including, but not limited to, hydrochlorofluorocarbons.
(b) The Contractor shall label products which contain or are manufactured with ozone-depleting substances in the manner and to the extent required by 42 U.S.C. 7671j (b), (c), (d), and (e) and 40 CFR part 82, subpart E, as follows:
Contains (or manufactured with, if applicable) *_____, a substance(s) which harm(s) public health and environment by destroying ozone in the upper atmosphere.
* The Contractor shall insert the name of the substance(s).
(c)
(1) Track on an annual basis, between October 1 and September 30, the amount in pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons contained in the equipment and appliances delivered to the Government under this contract by—
(i) Type of hydrofluorocarbon (
(ii) Product or service code;
(iii) Equipment/appliance;
(iv) Contract number;
(v) Agency; and
(vi) Delivery location of equipment/appliance.
(2) Report that information to
(i) Annually by October 31 during each year during contract performance; and
(ii) At the end of contract performance.
(d) Refer to EPA's Significant New Alternatives Policy (SNAP) program (available at
(End of clause)
As prescribed in 23.804(b), insert the following clause:
(a)
As used in this clause—
(b) The Contractor shall comply with the applicable requirements of Sections 608 and 609 of the Clean Air Act (42 U.S.C. 7671g and 7671h) as each or both apply to this contract.
(c) Unless otherwise specified in the contract, the Contractor shall reduce the use, release, or emissions of high global warming potential hydrofluorocarbons under this contract by—
(1) Transitioning over time from high global warming potential hydrofluorocarbons to acceptable alternatives;
(2) Preventing and repairing refrigerant leaks through service and maintenance during contract performance; and
(3) Implementing recovery, recycling, and responsible disposal programs that avoid release or emissions during equipment service and as the equipment reaches the end of its useful life.
(d) The Contractor shall—
(1) Track on an annual basis, between October 1 and September 30, by type of hydrofluorocarbon (
(i) Normally each contain 50 or more pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons; and
(ii) Will be maintained, serviced, repaired, or disposed under this contract; and
(2) Report that information to
(i) No later than October 31 of each year during contract performance; and
(ii) At the end of contract performance.
(e) The Contractor shall refer to EPA's Significant New Alternatives Policy (SNAP) program (available at
(End of clause)
As prescribed in 23.804(c), insert the following clause:
(a)
(b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, or emissions of high global warming potential hydrofluorocarbons from aerosol propellants or solvents under this contract, by furnishing products and equipment or performing services using acceptable alternatives, when feasible.
(c) The Contractor shall refer to EPA's Significant New Alternatives Policy (SNAP) program (available at
(End of clause)
As prescribed in 23.804(d), insert the following clause:
(a)
(b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, and emissions of high global warming potential hydrofluorocarbons and refrigerant blends containing hydrofluorocarbons from foam blowing agents, under this contract, by furnishing
(c) The Contractor shall refer to EPA's Significant New Alternatives Policy (SNAP) program (available at
(End of clause)
Administrative Conference of the United States.
Notice.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. App.), the Assembly of the Administrative Conference of the United States will hold a meeting to consider two proposed recommendations and to conduct other business. This meeting will be open to the public.
The meeting will take place on Thursday, June 4, 2015, 10:00 a.m. to 5:00 p.m. The meeting may adjourn early if all business is finished.
The meeting will be held at the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 (Main Conference Room).
Shawne McGibbon, General Counsel (Designated Federal Officer), Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW., Washington, DC 20036; Telephone 202–480–2088; email
The Administrative Conference of the United States makes recommendations to federal agencies, the President, Congress, and the Judicial Conference of the United States regarding the improvement of administrative procedures (5 U.S.C. 594). The membership of the Conference, when meeting in plenary session, constitutes the Assembly of the Conference (5 U.S.C. 595).
Additional information about the proposed recommendations and the order of the agenda, as well as other materials related to the meeting, can be found at the 62nd Plenary Session page on the Conference's Web site: (
Office of Advocacy and Outreach, USDA.
Notice of public listening session.
The Office of Advocacy and Outreach (OAO) will hold a public meeting entitled “USDA's Receipt for Service Initiative” on June 3, 2015. The purpose of this event is to promote public feedback on the implementation of the Receipt for Service or Denial of Service provisions of the 2008 Farm Bill (section 14003 of the Food, Conservation and Energy Act of 2008 (7 U.S.C. 2279–1(e)) and as amended in section 12204 of the Agricultural Act of 2014).
Mrs. Kenya Nicholas, USDA Outreach
This session encourages dialogue from the public on implementing the mandatory provision for USDA officials in USDA's Service Centers nationwide to issue Receipts for Service or Denial of Service.
The meeting will be held on June 3, 2015. Registration will start at 10 a.m. and the program will begin at 10:30 a.m. EST and conclude by noon.
U.S. Department of Agriculture, Jamie L. Whitten Building, Room 108–A, 1400 Independence Avenue SW., Washington, DC. Participants should enter the building through the Independence Avenue or Jefferson Drive entrance of the Jamie Whitten Building located between 12th and 14th Street. Valid photo identification is required for clearance by building security personnel.
Forest Service, USDA.
Notice of Meeting.
The Shasta County Resource Advisory Committee (RAC) will meet in Redding, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. The meeting is open to the public. The purpose of the meeting is to discuss the 2015 two-year extension of the Secure Rural Schools and Community Self-Determination Act and associated Title II funding.
June 17, 2015, 9:00 a.m. to 3:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at USDA Service Center, Shasta-Trinity National Forest Headquarters, 3644 Avtech Parkway, Redding, CA 96002.
Written comments may be submitted as described under
Lesley Yen, Designated Federal Official by phone at 530–275–1587 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed For Further Information.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
Forest Service, USDA.
Notice of Meeting.
The Shasta County Resource Advisory Committee (RAC) will meet in Redding, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110–343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and vote on project proposals to recommend to the Shasta-Trinity National Forest Supervisor.
August 26 & 27, 2015, 9:00 a.m. to 3:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at USDA Service Center, Shasta-Trinity National Forest Headquarters, 3644 Avtech Parkway, Redding, CA 96002.
Written comments may be submitted as described under
Lesley Yen, Designated Federal Official by phone at 530–275–1587 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accomodation for access to the facility or procedings by contacting the person listed
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
United States Commission on Civil Rights.
Solicitation of applications.
Because the terms of the members of the Tennessee Advisory Committee are expiring on August 15, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Tennessee Advisory Committee, and applicants must be residents of Tennessee to be considered. Letters of interest must be received by the Southern Regional Office of the U.S. Commission on Civil Rights no later than June 15, 2015. Letters of interest must be sent to the address listed below.
Because the terms of the members of the Maine Advisory Committee are expiring on August 15, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Maine Advisory Committee, and applicants must be residents of Maine to be considered. Letters of interest must be received by the Eastern Regional Office of the U.S. Commission on Civil Rights no later than June 15, 2015. Letters of interest must be sent to the address listed below.
Because the terms of the members of the Rhode Island Advisory Committee are expiring on August 15, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the Rhode Island Advisory Committee, and applicants must be residents of Rhode Island to be considered. Letters of interest must be received by the Eastern Regional Office of the U.S. Commission on Civil Rights no later than June 15, 2015. Letters of interest must be sent to the address listed below.
Because the terms of the members of the West Virginia Advisory Committee are expiring on August 15, 2015, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply. The memberships are exclusively for the West Virginia Advisory Committee, and applicants must be residents of West Virginia to be considered. Letters of interest must be received by the Eastern Regional Office of the U.S. Commission on Civil Rights no later than June 15, 2015. Letters of interest must be sent to the address listed below.
Letters of interest for membership on the Tennessee Advisory Committee should be received no later than June 15, 2015.
Letters of interest for membership on the Maine Advisory Committee should be received no later than June 15, 2015.
Letters of interest for membership on the Rhode Island Advisory Committee should be received no later than June 15, 2015.
Letters of interest for membership on the West Virginia Advisory Committee should be received no later than June 15, 2015.
Send letters of interest for the Tennessee Advisory Committee to: U.S. Commission on Civil Rights, Southern Regional Office, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. Letter can also be sent via email to
Send letters of interest for the Maine Advisory Committee to: U.S. Commission on Civil Rights, Eastern Regional Office, 1331 Pennsylvania Ave. NW., Suite 1150, Washington, DC 20425. Letter can also be sent via email to
Send letters of interest for the Rhode Island Advisory Committee to: U.S. Commission on Civil Rights, Eastern Regional Office, 1331 Pennsylvania Ave. NW., Suite 1150, Washington, DC 20425. Letter can also be sent via email to
Send letters of interest for the West Virginia Advisory Committee to: U.S. Commission on Civil Rights, Eastern Regional Office, 1331 Pennsylvania Ave. NW., Suite 1150, Washington, DC 20425. Letter can also be sent via email to
David Mussatt, Chief, Regional Programs Unit, 55 W. Monroe St., Suite 410, Chicago, IL 60603, (312) 353–8311. Questions can also be directed via email to
The Tennessee, Maine, Rhode Island, and West Virginia Advisory Committees are statutorily mandated federal advisory committees of the U.S. Commission on Civil Rights pursuant to 42 U.S.C. 1975a. Under the charter for the advisory committees, the purpose is to provide advice and recommendations to the U.S. Commission on Civil Rights (Commission) on a broad range of civil rights matters in its respective state that pertain to alleged deprivations of voting rights or discrimination or denials of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or the administration of justice. Advisory committees also provide assistance to the Commission in
Each advisory committee consists of not more than 19 members, each of whom will serve a four-year term. Members serve as unpaid Special Government Employees who are reimbursed for travel and expenses. To be eligible to be on an advisory committee, applicants must be residents of the respective state or district, and have demonstrated expertise or interest in civil rights issues.
The Commission is an independent, bipartisan agency established by Congress in 1957 to focus on matters of race, color, religion, sex, age, disability, or national origin. Its mandate is to:
• Investigate complaints from citizens that their voting rights are being deprived,
• study and collect information about discrimination or denials of equal protection under the law,
• appraise federal civil rights laws and policies,
• serve as a national clearinghouse on discrimination laws,
• submit reports and findings and recommendations to the President and the Congress, and
• issue public service announcements to discourage discrimination.
The Commission invites any individual who is eligible to be appointed a member of the Tennessee, Maine, Rhode Island, or West Virginia Advisory Committee covered by this notice to send a letter of interest and a resume to the respective address above.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, submit written comments, on or before July 10, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Direct requests for additional information or copies of the information collection instrument(s) and instructions to Laura Waggoner, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233 (or via the Internet at
The mission of the Geography Division (GEO) within the Census Bureau is to plan, coordinate, and administer all geographic and cartographic activities needed to facilitate Census Bureau statistical programs throughout the United States and its territories. GEO manages programs that continuously update features, boundaries, addresses, and geographic entities in the Master Address File/Topologically Integrated Geographic Encoding and Referencing (MAF/TIGER) System. GEO, also, conducts research into geographic concepts, methods, and standards needed to facilitate Census Bureau data collection and dissemination programs.
The Census Bureau is requesting a revision of a currently approved collection, to cover the annotation and verification phases of the 2015–2016 School District Review Program (SDRP). The Census Bureau requests a two-year clearance and a project specific Office of Management and Budget (OMB) Control Number for SDRP. GEO, in coordination with OMB, is removing select programs from the generic Geographic Partnership Programs (GPPs) clearance to individual project specific clearance packages. A project specific clearance for SDRP will allow the Census Bureau to provide enhanced detail and ensure the two-year cycle is uninterrupted.
The National Center for Education Statistics (NCES) sponsors the SDRP, which enables the Census Bureau to create special tabulations of Decennial Census data by school district geography. The demographic data produced by the Census Bureau for the NCES and related to each school district is of vital importance for each state's allocation under Title I of the Elementary and Secondary Education Act as amended by the No Child Left Behind Act of 2001. The NCES identifies a Title I Coordinator, and the Census Bureau works with the NCES on assigning a Mapping Coordinator in each state to work with the Census Bureau to implement this work. The respondents for the SDRP are the Title I Coordinators and Mapping Coordinators from the fifty states and the District of Columbia.
The SDRP invites respondent participation in two phases of the program: Annotation and Verification. As part of the 2015–2016 SDRP Annotation phase, the Mapping Coordinator in each state will receive a variety of materials from the Census Bureau to use in their review and update of school district boundaries, names, codes and geographic relationships. The Mapping Coordinators will use the Census Bureau's MAF/TIGER Partnership Software (MTPS) and Census supplied spatial data in digital shapefile format to identify boundary changes for their school districts. As part of the Verification phase of the SDRP, Mapping Coordinators will have the opportunity to either use the MTPS with Census Bureau supplied Verification shapefiles, or the Census Crowdsourcing Tool (CCT) to review and verify that their submitted information was correctly captured by the Census Bureau. If a respondent finds cases where the Census Bureau did not incorporate their proposed submissions correctly, the respondent can tag and comment the area of issue and that information will become available to the Census Bureau for corrections.
The Census Bureau conducts the SDRP every two years under agreement from the NCES of the U.S. Department of Education (ED). The Census Bureau invites state education officials to participate in the review and update of its national inventory of school district boundaries and district information. State education officials collaborate with local superintendents on their responses. The participants review and provide updates and corrections to the elementary, secondary, and unified school district names and Federal Local Education Agency (LEA) identification numbers, school district boundaries, and the grade ranges for which a school district is financially responsible. The participants submit updated digital spatial files back to the Census Bureau.
The Census Bureau uses the updated school district information along with
Annotation Phase: 51.
Verification Phase: 51.
Annotation Phase: 30 hours.
Verification Phase: 10 hours.
Annotation Phase: 1,530 hours.
Verification Phase: 510 hours.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Summarization of comments submitted in response to this notice will be included in the request for OMB approval of this information collection. Comments will also become a matter of public record.
International Trade Administration, U.S. Department of Commerce.
Notice of a New Privacy Act System of Records: COMMERCE/ITA–8, Salesforce Customer Relationship Management System.
In accordance with the Privacy Act of 1974, as amended, Title 5 United States Code (U.S.C.) § 552a(e)(4) and (11); and Office of Management and Budget (OMB) Circular A–130, Appendix I, Federal Agency Responsibilities for Maintaining Records About Individuals, The Department of Commerce is issuing this notice of its intent to establish a new system of records entitled “COMMERCE/ITA–8, Salesforce Customer Relationship Management System.”
You may submit written comments to Ms. Lois V. Mockabee, International Trade Administration Privacy Act Officer, U.S. Department of Commerce, International Trade Administration, 1401 Constitution Avenue NW., Room 21023, Washington, DC 20230.
Ms. Lois V. Mockabee, International Trade Administration, 1401 Constitution Avenue NW., Room 21023, Washington, DC 20230. (202) 482–6111.
The purpose of this new information system will be to help ITA promulgate its mission by promoting and fostering international trade opportunities between small and medium-sized U.S. businesses and international trading partners. The Salesforce Relationship Management System is a Web-based software product designed to acquire, retain, and grow customer relationships by automating sales and customer support activities and providing a holistic view of the customer relationship across the organization.
COMMERCE/ITA–8, Salesforce Relationship Management System.
None.
U.S. Department of Commerce, 1401 Constitution Avenue NW., Chief Information Officer, Room 48002, Washington, DC 20230.
Customer Biographical Information; Resource Provider and Local Business Assistance Organization Information; U.S. exporting companies and/or individuals involved in an ongoing exporting concern; U.S. private citizens, students and/or researchers.
For Customer Biographical Information Category—individual customer name, company name, personal or business email address, personal or business telephone number, personal or business fax number, personal or business mailing address, date and time of contact, customer service agent name, customer number, industry, contact type, year(s) in business, size of firm, company Web site (URL), ownership, years in exporting, countries exported to, number of employees, annual revenue, service need, customer request, service resolution, contact experience, service satisfaction, service recommendation(s)/referral(s), contact preference, and desire to be contacted to discuss survey results; and for Resource Provider and Local Business Assistance Organization Information Category—submitter name, submitter email address, resource name, resource summary description, name of resource point of contact (POC), POC title, POC email, and POC telephone; press articles; topic of contact; U.S. or non-U.S. organization; the country(ies) of interest; and log in name and password.
15 U.S.C. 1512
The purpose of this system is to assemble the necessary information to assist customers in connecting with business assistance services, programs,
These records may be disclosed as follows:
1. In the event that a system of records maintained by the Department to carry out its functions indicates a violation or potential violation of law or contract, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute or contract, or rule, regulation, or order issued pursuant thereto, or the necessity to protect an interest of the Department and Federal partners, the relevant records in the system of records may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute or contract, or rule or order issued pursuant thereto, or protecting the interest of the Department.
2. A record from this system of records may be disclosed to federal agency partners including: the Small Business Administration (SBA), Department of Defense (DOD), Department of Veteran Affairs (VA), U.S. Environmental Protection Agency (EPA), U.S. Housing and Urban Development (HUD), Department of Health and Human Services (HHS), General Services Administration (GSA), United States Department of Agriculture (USDA), Department of Energy (DOE), Office of Management and Budget (OMB), Department of State, Export/Import Bank, Overseas Private Investment Corporation (OPIC), Department of Transportation (DOT), Department of Treasury, Department of Justice (DOJ), National Science Foundation (NSF), U.S. Trade Development Agency (USTDA), Department of Education, Department of Labor (DOL), Department of Interior (DOI), Department of Homeland Security (DHS), and the National Aeronautical and Space Administration (NASA) in connection with the assignment, based on customer need, and programs for the purpose of linking American businesses to available government business resources.
3. A record from this system of records may be disclosed to Federal partners' sponsored organizations, including Federal grantees and/or certified organizations involved in business development efforts and assistance such as: DOC's National Institute of Standards and Technology (NIST) Hollings Manufacturing Extension Partnership (MEP) Centers, DOC's NIST Manufacturing Technology Acceleration Centers (MTAC), DOC's Economic Development Administration (EDA) University Centers, DOC's Minority Business Development Agency (MBDA) Business Centers, Native American Business Enterprise Centers and Procurement Assistance Centers, DOC's International Trade Administration (ITA) Trade Promotion Coordinating Committee (TPCC), DOD's Procurement Technical Assistance Centers (PTAC), SBA's Small Business Development Centers (SBDC), Small Business and Technology Development Centers (SBTDC), Women Business Centers (WBC), Veteran Business Outreach Centers (VBOC), Service Corps of Retired Executives (SCORE), DOT's Small Business Transportation Resource Centers (SBTRC), and Treasury's Community Development Financial Institutions (CDFI), in connection with the assignment, based on customer need, and programs for the purpose of linking American businesses to available business resources.
4. A record from this system of records may be disclosed to partner state governments, local governments, Non-Profit business development and assistance organizations, in connection with the assignment, based on customer need, and programs for the purpose of linking American businesses to available business resources.
5. A record in this system of records may be disclosed to a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record.
6. A record in this system of records may be disclosed to the Department of Justice in connection with determining whether disclosure thereof is required by the Freedom of Information Act (5 U.S.C. 552).
7. A record in this system of records may be disclosed to a contractor of the Department having need for the information in the performance of the contract, but not operating a system of records within the meaning of 5 U.S.C. 552a(m).
8. A record from this system of records may be disclosed to the Administrator, General Services Administration (GSA), or his/her designee, during an inspection of records conducted by GSA as part of that agency's responsibility to recommend improvements in records management practice and programs, under the authority of 44 U.S.C. 2904 and 2906. Such disclosure shall be made in accordance with the GSA regulations governing inspection of records for this purpose, and any other relevant (
9. A record from this system of records may be disclosed in the course of presenting evidence to a court, magistrate or administrative tribunal, including disclosures to opposing counsel in the course of settlement negotiations.
10. A record in this system of records may be disclosed, as a routine use, to appropriate agencies, entities and persons when (1) it is suspected or determined that the security or confidentiality of information in the system of records has been compromised; (2) the Department 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 whether systems or programs (whether maintained by the Department 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 Department's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy such harm.
Not applicable.
On electronic digital media in encrypted format within a controlled environment, and accessed only by authorized personnel.
By individual's name, business name, or other identifier such as email address or telephone number.
Maintained in areas accessible only to authorized personnel in a building protected by security guards. System is password protected and is FIPS 199 compliant. System adheres to a Moderate security rating.
All records shall be retained and disposed of in accordance with Department directives and series records schedule.
System Administrator, addresses are the same as listed under System Location.
An individual requesting notification of existence of records on himself or herself should send a signed, written inquiry to the U.S. Department of Commerce, International Trade Administration Privacy Act Office at 1401 Constitution Ave. NW., Room 21023, Washington, DC 20230. The request letter should be clearly marked, “PRIVACY ACT REQUEST.” The written inquiry must be signed and notarized or submitted with certification of identity under penalty of perjury. Requesters should reasonable specify the record contents being sought.
An individual requesting access to records on himself or herself should send a signed, written inquiry to the same address as stated in the Notification Procedure section above. The request letter should be clearly marked, “PRIVACY ACT REQUEST.” The written inquiry must be signed and notarized or submitted with certification of identity under penalty of perjury. Requesters should reasonably specify the record contents being sought.
An individual requesting correction or contesting information contained in his or her records must send a signed, written request inquiry to the U.S. Department of Commerce, International Trade Administration Privacy Act Office, and 1401 Constitution Ave., NW., Room 21023, Washington, DC 20230. Requesters should reasonably identify the records, specify the information they are contesting and state the corrective action sought and the reasons for the correction with supporting justification showing how the record is incomplete, untimely, inaccurate, or irrelevant.
Subject individuals; individuals who interact with the ITA through social media networks or as a result of public outreach.
None.
Economic Development Administration, Commerce.
Notice of an open meeting.
The National Advisory Council on Innovation and Entrepreneurship (NACIE) will hold a public meeting on Thursday, June 4, 2015, 2:00–3:00 p.m. Eastern Daylight Time (EDT) and Friday, June 5, 2015, 8:30 a.m.–12:00 p.m. EDT. During this time, members will present proposals to the Secretary of Commerce, identify next steps, and continue to work on potential committee initiatives on innovation, entrepreneurship, and workforce/talent.
June 4, 2015: General Services Administration, 1800 F St NW., Washington, DC 20006. Teleconference: Dial-In: 1–800–988–9617, Passcode: 7649366.
June 5, 2015: Department of Commerce, 1401 Constitution Ave., Washington, DC 20230. Teleconference: Dial-In: 1–800–369–2154, Passcode: 8915613.
The Council was chartered on November 10, 2009 to advise the Secretary of Commerce on matters related to innovation and entrepreneurship in the United States. NACIE's overarching focus is recommending transformational policies to the Secretary that will help U.S. communities, businesses, and the workforce become more globally competitive. The Council operates as an independent entity within the Office of Innovation and Entrepreneurship (OIE), which is housed within the U.S. Commerce Department's Economic Development Administration. NACIE members are a diverse and dynamic group of successful entrepreneurs, innovators, and investors, as well as leaders from nonprofit organizations and academia.
The purpose of this meeting is to discuss the Council's planned work initiatives in three focus areas: workforce/talent, entrepreneurship, and innovation. The final agenda will be posted on the NACIE Web site at
Julie Lenzer Kirk, Director, Office of Innovation and Entrepreneurship, Room 78018, 1401 Constitution Avenue NW., Washington, DC 20230; email:
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before June 1, 2015. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On December 31, 2014, the Department of Commerce (the Department) published the preliminary results and partial rescission of the administrative review of the antidumping duty order on certain cased pencils (pencils) from the People's Republic of China (PRC). We gave interested parties an opportunity to comment on the preliminary results in a notice. The period of review (POR) is December 1, 2012, through November 30, 2013. This review covers one exporter of subject merchandise, Shandong Rongxin Import & Export Co., Ltd. (Rongxin). For the final results, we continue to find that Rongxin is not eligible for a separate rate, and, thus, remains part of the PRC-wide entity.
Mary Kolberg or Sergio Balbontin, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1785, (202) 482–6478, respectively.
On December 31, 2014, the Department published the preliminary results and partial rescission of the administrative review of the antidumping duty order on pencils from the PRC.
The merchandise subject to the order includes pencils from the PRC. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 9609.1010. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description is dispositive. A full description of the scope of the order is contained in the Issues and Decision Memorandum, dated concurrently with and hereby adopted by this notice.
All issues raised in the case and rebuttal briefs filed by parties to this administrative review are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as an appendix. The Issues and Decision Memorandum is a public document and is on file electronically
The Department conducted this review in accordance with section 751(a)(1)(B) of the Act. Based on our analysis of the comments received, we did not make any revisions to the
For the
In the
As a result of this administrative review, we determine that the following weighted-average dumping margins exist:
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review in accordance with the final results of this review.
The Department announced a refinement to its assessment practice in non-market economy country antidumping proceedings.
We intend to issue assessment instructions to CBP 15 days after the date of publication of the final results of review.
The following cash deposit requirements will be effective upon publication of these final results of review for all shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date as provided by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the exporter-specific rate; (2) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be that for the PRC-wide entity of 114.90 percent; (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
These final results of review are issued and published in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
National Institute of Standards and Technology, Commerce.
Notice.
The National Institute of Standards and Technology (NIST) announces that the Hollings Manufacturing Extension Partnership Program (MEP) intends to publish and post two (2) separate announcements of funding availability for MEP Centers in calendar year 2016. The list of specific states that will be involved in the competitions will be posted on the NIST MEP Web site at:
The two separate announcements of funding availability are expected to be published and posted in January 2016 and July 2016, respectively. The Regional Forums will take place prior to or in conjunction with each publication, with notification to the public posted at:
The FRNs will be published in the
Diane Henderson, Manufacturing Extension Partnership, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 4800, Gaithersburg, Maryland 20899–4800, telephone number (301) 975–5105, email:
NIST MEP, through a state-federal network of 60 centers and 1,200 manufacturing experts, helps small and medium-sized manufacturers across the country to improve their production processes, upgrade their technological capabilities, and bring new products to market. MEP helps small and medium-sized manufacturers compete, thereby increasing employment and investment across the country and generating a high return on public investment.
Every dollar of federal investment in the MEP translates into $19 of new sales for small and medium-sized manufacturers, or almost $2.5 billion annually across the 30,000 small and medium-sized manufacturers that MEP serves.
The MEP program is in the process of a multi-year effort to conduct full and open competitions to select operators for MEP centers. On August 1, 2014, NIST launched the first round of competitions for MEP centers in 10 states, focusing on states where the MEP investment in terms of dollars per manufacturing establishment was below its national average, making them the most underfunded of MEP's 60 centers.
On March 9, 2015, NIST announced funding opportunities in 12 states, with
The benefits of competition include:
○ Opportunity to realign MEP center activities with State economic development strategies;
○ Resetting of NIST MEP funding levels by State to reflect the regional importance of manufacturing and the national distribution of manufacturing activities;
○ Reduction and simplification of reporting requirements; and
○ Five-year awards reducing the annual paperwork burden.
It should be noted that the MEP Program is not a Federal research and development program. It is not the intent of the program that awardees will perform systematic research. To learn more about the MEP Program, please go to
NIST MEP anticipates announcing the competitions for approximately eleven (11) states in January 2016, with new MEP Center cooperative agreement awards anticipated to start in October 2016. NIST MEP anticipates announcing the competitions for an additional eleven (11) states in July 2016, with new MEP Center cooperative agreement awards anticipated to start in April 2017. The proposed list of states for the January 2016 and July 2016 announcements of funding availability will be posted on the MEP Web site at
This notice contains information based on the current planning for NIST MEP's activities in calendar year 2016, with the competitions expected to be completed by December 2016. NIST reserves the discretion to add and/or remove states from the list of states participating in the MEP competitions. The final list of states participating in each of the MEP Center competitions and the funding amounts available will be published in the announcements of funding availability that will be published in the
In addition to issuing the two announcements of funding availability described above, NIST MEP intends to conduct approximately two to three regional forums prior to or in conjunction with each publication of these announcements. These forums will provide general information regarding MEP and offer general guidance on preparing proposals. NIST/MEP staff will be available at the forums to answer general questions. During the forums, proprietary technical discussions about specific project ideas will not be permitted. Also, NIST/MEP staff will not critique or provide feedback on any project ideas during the forums or at any time before submission of a proposal to MEP. However, NIST/MEP staff will provide information about business model approaches, developing proposals and sharing lessons learned from the 2015 MEP competition. NIST/MEP staff will also discuss the MEP eligibility and cost-sharing requirements, evaluation criteria and selection factors, selection process, and the general characteristics of a competitive MEP proposal.
Once specific dates, locations and agendas have been identified for each of these Regional Forums, NIST MEP will post this information on its public Web site,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Status review; notice of finding.
We, NMFS, have completed comprehensive status reviews under the Endangered Species Act (ESA) for two foreign marine species in response to a petition to list those species. These species are the undulate ray (
The finding announced in this notice was made on
You can obtain the petition, status review reports, the 12-month finding, and the list of references electronically on our NMFS Web site at
Ronald Salz, NMFS, Office of Protected Resources (OPR), (301) 427–8171.
On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the Endangered Species Act (ESA). This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future. In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years. In determining an appropriate “foreseeable future” timeframe for the undulate ray and the greenback parrotfish, we considered both the life history of the species and whether we could project the impact of threats or risk factors through time. For the undulate ray, we could not define a specific number of years as the “foreseeable future” due to uncertainty regarding life history parameters of, and threats to, the species. For the greenback parrotfish, the foreseeable future was defined as approximately 40 years, based on this species' relatively long life span (estimated at 23 years [Previero, 2014a]), which means threats can have long-lasting impacts.
On July 1, 2014, NMFS and USFWS published a policy to clarify the interpretation of the phrase “significant portion of its range” (SPR) in the ESA definitions of “threatened” and “endangered” (the SPR Policy; 76 FR 37578). Under this policy, the phrase “significant portion of its range” provides an independent basis for listing a species under the ESA. In other words, a species would qualify for listing if it is determined to be endangered or threatened throughout all of its range or if it is determined to be endangered or threatened throughout a significant portion of its range. The policy consists of the following four components:
(1) If a species is found to be endangered or threatened in only an SPR, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range.
(2) A portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction or likely to become so in the foreseeable future, throughout all of its range.
(3) The range of a species is considered to be the general geographical area within which that species can be found at the time USFWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (
(4) If a species is not endangered or threatened throughout all of its range but is endangered or threatened within an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.
We considered this policy in evaluating whether to list the undulate ray and greenback parrotfish as endangered or threatened under the ESA.
Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species.
In assessing extinction risk of these two species, we considered the demographic viability factors developed by McElhany
Scientific conclusions about the overall risk of extinction faced by the undulate ray and greenback parrotfish under present conditions and in the foreseeable future are based on our evaluation of the species' demographic risks and section 4(a)(1) threat factors. Assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on the species.
Status reviews for the undulate ray and the greenback parrotfish were conducted by NMFS OPR staff. In order to complete the status reviews, we compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public in response to our petition findings. Draft status review reports were also submitted to independent peer reviewers; comments and information received from peer reviewers were addressed and incorporated as appropriate before finalizing the draft reports. The undulate ray and greenback parrotfish status review reports are available on our Web site (see
The following section describes our analysis of the status of the undulate ray,
The undulate ray,
The undulate ray gets its name from the leading edge of the disc, which undulates from the snout to the wingtips during movement. Its dorsal color ranges from almost black to light yellow-brown interspersed with dark wavy bands lined by a twin row of white spots, which may camouflage them against the seabed. The underbelly is white with dark margins. The dorsal fins are widely spaced, normally with two dorsal spines between them. The undulate ray is relatively large, reaching 114 cm in total length (TL) as an adult (Ellis
Growth rates, size and age at maturity, and seasonal patterns of reproduction in undulate rays were determined from individuals taken from trammel nets, beach seines, and fish markets in Portugal (Coelho and Erzini, 2002; Coelho and Erzini, 2006; Moura
Estimated generation length (the age at which half of total reproductive output is achieved by an individual) for this species varies from 14.9 to 15.9 years in females and from 14.3 to 15.3 years in males (Coelho
The undulate ray is a seasonal breeder; however, temporal differences in breeding season were found between nursery areas (Moura
The undulate ray is oviparous, in that the fertilized egg, which is encased in an egg capsule, hatches outside of the parental body (Moura
Information on sex ratios in the population is sparse, but appears to indicate a slight female bias in some areas and significant male bias in other areas. In the eastern English Channel, individuals collected in bottom trawl surveys were slightly female-biased at 57 percent female and 43 percent male (Martin
Undulate ray habitat in the northeastern Atlantic Ocean includes sandy and coarse bottoms from the shoreline to no deeper than 200 m, but undulate rays are generally found in waters less than 50 m deep (Saldnaha, 1997 as cited in Coelho and Erzini, 2006; Martin
The English Channel provides important habitat for the undulate ray (Martin
The Gironde estuary of France provides important sand and mud bottom habitat for the undulate ray (Lobry
In waters off Portugal, the undulate ray diet changed as individuals grew and matured. Smaller individuals had a generalized diet, consuming a variety of semi-pelagic and benthic prey, including shrimps and mysids. However, larger undulate rays began to specialize on the brachyuran crab,
The undulate ray occurs on the continental shelf of the northeast Atlantic Ocean, ranging in the north from southwest Ireland and the English Channel, south to northwest Africa, west to the Canary Islands, and east into the Mediterranean Sea (Serena, 2005; Coelho and Erzini, 2006; Ellis
Few data exist regarding undulate ray population structure. Tagging studies were conducted in French waters from 2012 through 2014 to determine population structuring of the undulate ray in the English Channel, central Bay of Biscay, Iroise Sea, South Brittany, and Morocco, North Africa (Delamare
The ICES Working Group on Elasmobranch Fishes (2013) recommended the species be managed as five separate stocks: (1) English Channel; (2) southwest Ireland; (3) Bay of Biscay; (4) Cantabrian Sea; and (5) Galicia and Portugal. However, the recommendation was based only on the species' patchy distribution and not direct evidence of population structure. Data are lacking on population structure based on behavioral, morphological, and genetic characteristics.
Determining population size or trends is difficult due to the patchy distribution of the species, variable survey effort and survey methods over time, inconsistent metrics for reporting abundance, temporally limited (less than 20 years) data sets, and species misidentification. Prior to 2009, the undulate ray was often classified at a higher taxonomic level,
Fisheries-independent bottom trawl surveys were conducted in the eastern English Channel each October from 1988 through 2008 (Martin
Fisheries-independent beam trawl surveys have been conducted in the eastern and western English Channel each year since 1989. In the eastern English Channel survey, undulate ray catch rates were generally low and variable, partly due to its patchy distribution. For the period 1993–2013, mean number of individuals caught per hour of survey effort ranged from a low of zero (in 2006 and 2007) to between 0.25 and 0.30 (in 1996, 2009, 2012–2013) (ICES, 2014a). In the western English Channel beam trawl survey, undulate ray catch rates were also generally low and variable from 1989–2011 (Burt
In the southern region of the North Sea, the undulate ray may be a rare vagrant, but it is absent further north (Ellis
Catch of undulate ray was reported by two charter vessels from Tralee Bay, southwestern Ireland, for the years 1981 through 2005 (ICES, 2007). Although effort data were not reported, the overall catch trend suggests a decline in abundance. Undulate ray catch was at a high of 80–100 fish per year in the first 2 years of reporting (1980–1981), declined to 20–30 fish per year by the mid-1990s, increased to about 40–60 fish per year at the turn of the century, and declined again from 2001 through 2005, although catches fluctuated each year (ICES, 2007). Tag and release data collected in the recreational fishery throughout southwestern Ireland, including Tralee Bay, from 1972–2014 indicate a decline since the 1970s, but potential changes in fishing effort were not provided (ICES, 2014b).
The Tagus estuary, in the central and west coast of Portugal, was surveyed between 1979 and 1981 and from 1995 through 1997 to determine fish abundance and diversity (Cabral
French landings data on the undulate ray for the Celtic Sea from 1995–2001 show a declining trend from a high of 12 t in 1995 to a low of 0 t in 2000 and 2001 (ICES, 2007). However, not all French fisheries reported skate landings at the species level. In coastal waters off Spain, based on bycatch data from artisanal fisheries, there is no evidence of a decreasing trend in undulate ray abundance (Bañon
Available information regarding current, historical, and potential future threats to the undulate ray was thoroughly reviewed (Conant, 2015). We summarize information regarding threats below according to the factors specified in section 4(a)(1) of the ESA. There is very little information available on the impact of “Disease or Predation” or “Other Natural or Manmade Factors” on undulate ray survival. These subjects are data poor, but there are no serious or known concerns raised under these threat categories with respect to undulate ray extinction risk; therefore, we do not discuss these further here. See Conant (2015) for additional discussion of all ESA section 4(a)(1) threat categories.
Data are limited on the undulate ray's habitat, and a comprehensive review of the habitat characteristics that are important to the undulate ray, and anthropogenic impacts on undulate ray habitat are not available. Thus, the following section summarizes available data by region on any habitat impacts, if known.
The Tagus estuary in Portugal has been subjected to industrial development and urbanization (Cabral
The Gironde estuary is considered somewhat pristine and has relatively fewer phosphates and nitrogen content compared to other estuaries in France, such as the Seine, Loire, and Rhône (Mauvais and Guillaud, 1994 cited in Lobry
The English Channel, and its local biodiversity, are also subject to numerous anthropogenic impacts, including shipping, aggregate extraction, aquaculture, and eutrophication (Dauvin, 2008; Martin
Major oil spills have occurred in European seas, including off the Brittany coast of France, Cornwall coast of England, and Galician coast of Spain (Dauvin, 2008). In 2002, a spill of over 50,000 tons of heavy oil occurred 250 miles from Spain's coast (Serrano
With respect to commercial fishing, the undulate ray is mainly bycaught in demersal fisheries using trawls, trammel nets, gillnets, and longlines, but has been recorded as landings in other fisheries operating within its range (Coehlo
In Portugal, prior to the 2009 retention ban, over 90 percent of the undulate rays caught in trammel nets were retained for commercial purposes or for personal consumption (Coelho
In the Gulf of Cadiz off Spain, the undulate ray was the fifth most common species discarded (Gonçalves
In the western Mediterranean, in 2001, one undulate ray was recorded in a total of 131 bottom trawl hauls (Massutí and Moranta, 2003) and two specimens were recorded in 88 hauls (Massutí and Reñones, 2005) on the continental shelf of the Balearic Islands off the Iberian Peninsula. Landings data are not available for the northwestern coast of Africa, but the undulate ray's preference for shallow waters may render it vulnerable to intensive artisanal coastal fisheries operating in the area (Coelho
Inclusion of the undulate ray on the EC prohibited species list has increased commercial discarding of this species, especially in areas where it is locally common (ICES, 2013). Data are lacking on mortality in the undulate ray as a result of discarding. Mortality may be high in skates and rays discarded from fishing gear operating offshore where soak times are relatively long (Ellis
As discussed earlier, recreational catches have declined in Tralee Bay and southwestern Ireland, which may indicate overexploitation in this area, although fishing effort data are not available. The International Game Fish Association (IGFA), which has 15,000 members in over 100 countries, lists the undulate ray as a trophy fish (Shiffman
In addition to commercial and recreational fishing, population abundance research involving the tagging of undulate rays could have an impact on the species. Petersen disk tags were tested for the level of mortality
As described above, in 2009, through Council Regulation (EC No 43/2009), and in 2010, through Council Regulation (EU No 23/2010), the EC designated the undulate ray as a prohibited species that could not be fished, retained, transshipped or landed in the EU. Member countries of the EU include France, Spain, Portugal, UK, and Ireland—all countries where the undulate ray occurs. The justification for the ban was based largely on ICES's findings that the state of conservation in the Celtic Sea was “uncertain but with cause for concern” and recommendation of no targeted fishing for this species (ICES, 2014b). The prohibited species designations have been controversial and some EU countries have questioned the rationale behind them (ICES, 2013; ICES, 2014). In 2010, the EC asked ICES to comment on the listing of the undulate ray as a prohibited species. ICES (2010) stated that the undulate ray would be better managed under local management measures and “should not appear on the prohibited species list in either the Celtic Seas or the Biscay/Iberia ecoregion.” ICES classified the undulate ray as a “data-limited stock” and recommended a precautionary approach to the exploitation of this species (ICES, 2012). In 2014, the undulate ray was removed from the prohibited species list in ICES Sub-Area VII, which includes Ireland and the English Channel (ICES, 2014b), although it remains as a species that should be returned to the water unharmed to the maximum extent practicable and cannot be landed in this area.
In England and Wales, the undulate ray is designated as a species of principal importance in conserving biodiversity under sections 41 and 42 of the Natural Environment and Rural Communities Act of 2006. Thus, England and Wales must take into consideration the undulate ray in conserving biodiversity when performing government functions such as providing funds for development.
Other fishing regulations apply generally to skates and rays. Local English and Welsh minimum landing sizes are in effect in some inshore areas (Ellis
Information on regulatory mechanisms is lacking for the non-EU Mediterranean Sea and northwest Africa, which represents a large part of the undulate ray's overall range.
Several demographic characteristics of the undulate ray, which are intrinsic to elasmobranchs, may increase the species' vulnerability to extinction (Dulvy
Historical abundance data are lacking for the undulate ray. Prior to the ban on retention, fisheries landings data indicate that it was a common species caught in the Celtic Seas off west Ireland, Portugal, and the English Channel, but was uncommon elsewhere. Fisheries dependent data from France showed a decline in undulate ray catch over the period of 1995 through 2001. In the Tagus estuary, Portugal, the undulate ray mean density was stable or slightly increasing from 1979 through 1997. In coastal waters off Spain there is no evidence of a decreasing trend in the abundance of the undulate ray in the area. Thus, in some areas population abundance may be declining, while in other areas the population appears to be stable or increasing. For these reasons, we conclude that demographic characteristics related to population abundance have a low likelihood of contributing to the extinction of the undulate ray.
The distribution of the undulate ray is patchy, and few data exist on the undulate ray population structure. Preliminary data indicate undulate rays do not migrate great distances and exhibit high site fidelity. Similar to other large skates, these life-history characteristics may increase the undulate ray's vulnerability to exploitation, reduce their rate of recovery, and increase their risk of extinction (ICES, 2007; Rogers
Because there is insufficient information on genetic diversity, we conclude this characteristic presents an unknown likelihood of contributing to the extinction of the undulate ray.
Information on specific threat factors contributing to the undulate ray extinction risk is limited. Regarding habitat related threats, several estuaries inhabited by the undulate ray have been degraded by human activities, yet others appear somewhat pristine (
Overexploitation of the undulate ray by commercial fishing has occurred in some areas, but does not appear widespread. Fisheries independent data indicate undulate ray populations are uncommon in some areas, and stable or possibly increasing in other areas over time. Some mortality may also occur as a result of tags used in scientific research activities, although the number of rays tagged is relatively low and unlikely to represent a large portion of the overall population. For these reasons, we conclude that overutilization for commercial, recreational, or scientific purposes has a low likelihood of contributing to the extinction of the undulate ray. Predictions of how the threat of overutilization may impact the undulate ray in the foreseeable future would be largely speculative.
With respect to the inadequacy of existing regulatory mechanisms, retention of the undulate ray is banned in most areas of the EU. Although the ban on retention of the undulate ray is being re-examined, a precautionary approach to fisheries management is still advised for the undulate ray and is likely to continue into the foreseeable future. Other fisheries regulations for skates and rays in general will reduce the impact of fishing on the undulate ray population and are also likely to continue into the foreseeable future. In conclusion, there is a low likelihood that the inadequacy of existing regulatory mechanisms contributes or will contribute in the foreseeable future to the extinction of the undulate ray.
Conant (2015) concluded that the undulate ray is presently at a low risk of extinction, with no information to indicate that this will change in the foreseeable future. Although one of the demographic characteristics (growth rate/productivity) of the undulate ray has a moderate to high likelihood of contributing to extinction, the species does not appear to be negatively impacted by threats now, and information does not indicate the species' response to threats will change in the future. In addition, known threats pose a very low to low likelihood of contributing to the extinction of the undulate ray. After reviewing the best available scientific data and the extinction risk assessment, we agree with Conant (2015) and conclude that the undulate ray's risk of extinction is low both now and in the foreseeable future.
Though we find that the undulate ray is not in danger of extinction now or in the foreseeable future throughout its range, under the SPR Policy, we must go on to evaluate whether the species is in danger of extinction, or likely to become so in the foreseeable future, in a “significant portion of its range” (79 FR 37578; July 1, 2014).
The SPR Policy explains that it is necessary to fully evaluate a particular portion for potential listing under the “significant portion of its range” authority only if substantial information indicates that the members of the species in a particular area are likely
Thus, the preliminary determination that a portion may be both significant and endangered or threatened merely requires NMFS to engage in a more detailed analysis to determine whether the standards are actually met (79 FR 37578, at 37587). Unless both are met, listing is not warranted. The policy further explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question.
Applying the policy to the undulate ray, we first evaluated whether there is substantial information indicating that any particular portion of the species' range is “significant.” The undulate ray exhibits a patchy distribution throughout its range and may have been patchily distributed since at least the 1800s (ICES, 2008). It is locally abundant at sites in the central English Channel, Ireland, France, Spain, and Portugal (Ellis
The undulate ray is broadly distributed, with locally abundant populations in five countries, indicating a level of representation that would increase resiliency against environmental catastrophes or random variations in environmental conditions. Limited data indicate discrete populations may exist (
Finally, threats occur throughout the species' range and there is no one particular geographic area where the species appears to be exposed to heightened threats. This, coupled with the lack of data on the undulate ray population structure and diversity, precludes us from identifying any particular portion of the species' range where the loss of individuals within that portion would adversely affect the viability of the species to such a degree as to render it in danger of extinction, or likely to be in the foreseeable future, throughout all of its range.
After a review of the best available information, we could identify no particular portion of the undulate ray range where its contribution to the viability of the species is so important that, without the members in that portion, the species would be at risk of extinction, or likely to become so in the foreseeable future, throughout all of its range. Therefore, we find that there is no portion of the undulate ray range that qualifies as “significant” under the SPR Policy, and thus our SPR analysis ends.
Based on our consideration of the best available data, as summarized here and in Conant (2015), we determine that the undulate ray,
The following section describes our analysis of the status of the greenback parrotfish,
The greenback parrotfish,
Greenback parrotfish are endemic to Brazil and range from Manuel Luiz Reefs off the northern Brazilian coast to Santa Catarina on the southeastern Brazilian coast (Moura
The majority of parrotfishes inhabit coral reefs, but many can also be found in a variety of other habitats, including subtidal rock and rocky reefs, submerged seagrass, and macroalgal and kelp beds (Comeros-Raynal, 2012). There is little evidence that scarids have strict habitat requirements (Feitosa and Ferreira, 2014). Instead, they appear to be habitat “generalists” and their biomass is weakly related to the cover of particular reef feeding substrata (Gust, 2002). Greenback parrotfish have been recorded dwelling in coral reefs, algal reefs, seagrass beds, and rocky reefs at depths ranging from 1 m to at least 30 m (Moura
The following von Bertalanffy growth parameters were estimated for greenback parrotfish: L∞ = 84.48 cm, K = 0.17 and t
Parrotfish typically exhibit the following reproductive characteristics: Sexual change, divergent sexual dimorphism, breeding territories, and harems (Streelman
Freitas
Most parrotfish species are considered “generalists” in feeding behavior—they can rely on food types other than algae, such as detritus, crustaceans, sponges, gorgonians, and dead or live coral (Feitosa and Ferreira, 2014). Greenback parrotfish are classified as either detritivores or roving herbivores but do occasionally graze on live coral (Francini-Filho
There are no historical or current abundance estimates for greenback parrotfish. Several studies have reported average densities and relative abundance of greenback parrotfish at specific reef locations in Brazil using underwater visual census (UVC) techniques. Previero (2014b) reported average densities of greenback parrotfish by size class from 2001–2009 at five Abrolhos Bank sites. Average densities fluctuate considerably during this time series, with no strong trends detected for any of the size classes. For the largest size class (40–100 cm), that would be most targeted by fishing, the years 2006–2009 represent four out of the five largest mean densities of greenback parrotfish in the nine year time series. Ferreira (2005) conducted a baseline study of reef fish abundance at six different sites within the Abrolhos Reef complex in 2005. The mean density of greenback parrotfish ranged from 0.80 (Southern Reefs) to 6.04 (Timbebas Reefs) fish per 100 m
Two studies reported mean densities of greenback parrotfish on northeastern Brazilian reefs. In 2006, Medeiros
Results indicate that the greenback parrotfish is not only the most abundant species of parrotfish on Abrolhos Bank, but is also one of the dominant reef species overall in terms of fish biomass at some sites within this reef complex (Ferreira, 2005; Francini-Filho and Moura, 2008b; Kikucki
Time series datasets for detecting trends in greenback parrotfish abundance over time are limited. Three studies (Francini-Filho and Moura, 2008b; Bender
Available information regarding current, historical, and potential future threats to the greenback parrotfish was thoroughly reviewed (Salz, 2015). We summarize information regarding threats below according to the factors specified in section 4(a)(1) of the ESA. There is very little information available on the impact of “Disease or Predation” or “Other Natural or Manmade Factors” on greenback parrotfish survival. These subjects are data poor, but there are no serious or known concerns raised under these threat categories with respect to greenback parrotfish extinction risk; therefore, we do not discuss these further here. See Salz (2015) for additional discussion of all ESA section 4(a)(1) threat categories.
The adverse effects of global coral loss and habitat degradation (including declines in species abundance and diversity, reduced physiological condition, decreased settlement, change in community structure, etc.) on species dependent upon coral reefs for food and habitat have been well documented (Comeros-Raynal
In 2008, as part of the International Coral Reef Initiative, coral reef experts worldwide were asked to assess the threat status of reefs in their regions due to human pressures and global climate change (Wilkinson, 2008). For purposes of this assessment, reefs were categorized into one of three groups: (1) Not threatened—reefs at very low risk of decline in the short term (5–10 years); (2) Threatened—reefs under high risk of decline in the mid-long term (> 10 years); or (3) Critical—reefs under high risk of decline in the short term (5–10 years). In the Atlantic Eastern Brazil Region, experts classified 40 percent of the reefs as “Not Threatened,” 50 percent as “Threatened,” and 10 percent as “Critical” (Wilkinson, 2008).
The Brazilian National Coral Reef Monitoring Program, which includes all major reef areas in Brazil, conducts annual surveys at 90 different sites within 12 reef systems (Wilkinson, 2008). Reef Check (
The Itacolomis reef, the largest reef complex within the Corumbau Marine Extractive Reserve on Abrolhos Bank, has a rich coral fauna as well as relatively high cover, particularly of
Coral reef area loss and decline is widespread globally, including many reef areas along the Brazilian coastline. However, there is considerable variation in the reliance of different species on coral reefs based on species' feeding and habitat preferences—
Impacts of ocean acidification to coral abundance and/or diversity are arguably significant; however, the direct linkages between ocean acidification and greenback parrotfish extinction risk remain tenuous. As discussed above, the ability of greenback parrotfish to occupy multiple habitat types should make this species less vulnerable to climate change and ocean acidification compared to other reef species that are more dependent on coral for food and shelter. Similarly, there is no evidence directly linking increased ocean temperatures or sea level rise with greenback parrotfish survival.
Several studies suggest that overutilization of fish populations is leading to significant changes in the community structure and balance of Brazilian reef ecosystems (Costa
Greenback parrotfish were not considered a traditional fishery resource by most fishermen in Brazil as recently as 20 years ago (Francini-Filho and Moura, 2008b). Although fishermen from some localities have reported landing greenback parrotfish as far back as the late 1970s (Bender
Previero (2014b) conducted a quantitative assessment of the greenback parrotfish commercial fishery on Abrolhos Bank. Fishery dependent data were collected over 13 months between 2010 and 2011 from the main fishing ports that exploit reef fish: Caravelas; Prado; Corumbau Marine Extractive Reserve (MERC); and Alcobaca. The Alcobaca fleet was characterized by relatively large vessels (some over 12 m) equipped with freezer space for the preservation of fish over long periods. These vessels targeted parrotfish on more distant fishing grounds during extended fishing trips (average duration 11.7 days). By comparison, fishermen from Caravelas mainly took day trips targeting greenback parrotfish closer to shore and from smaller vessels. Prado fishing vessels also traveled longer distances, but greenback parrotfish were considered a less important target species by fishermen at this port (compared to either Alcobaca or Caravelas) and landings were considerably lower as a result. Alcobaca fishermen caught greenback parrotfish only with harpoons, often with air compressors to increase bottom time at greater depths; Caravelas fishermen used a combination of harpoons and nets. Greenback parrotfish landings ranged in size from 28 cm to 91 cm TL and the fishery was dominated by 8 and 9 year-old fish. The oldest fish sampled was 11 years old—less than half the estimated maximum life span of 23 years for this species (Previero, 2014a). Significantly larger specimens were landed at Alcobaca compared to Caravelas (Previero, 2014b). Length frequency data suggest that a relatively large portion of the greenback parrotfish
The potential vulnerability of the greenback parrotfish population to commercial fishery exploitation was evaluated by Previero (2014b) using a Productivity and Susceptibility Analysis (PSA) index designed for data deficient and small scale fisheries (Hobday
Greenback parrotfish may be particularly vulnerable to spearfishing, due to their size and reproductive traits. Spearfishing is a highly size-selective, efficient gear—fishermen target individual fish, typically the largest, most valuable individuals. For protogynous hermaphrodites, the largest individuals are (in order) terminal males, individuals undergoing sexual transition, and the largest females. Continued removal of terminal males, individuals undergoing sexual transition, and the largest females at high rates can lead to decreased productivity and increased risk of extinction over time. Thus, protogynous hermaphrodites, such as the greenback parrotfish, may be particularly susceptible to over-fishing (Francis, 1992; Hawkins and Roberts, 2003). With continued heavy exploitation from fishing, it is plausible that the proportion of male greenback parrotfish could fall below some critical threshold needed for successful reproduction in some localities. If sex change is governed by social (exogenous) mechanisms, then transition would be expected to occur earlier in the life cycle when larger individuals are selectively removed by fishing (Armsworth, 2001; Hawkins and Roberts, 2003). This would cause the mean size and age of females to decrease for protogynous species and could result in a reduction in egg production (Armsworth, 2001). Sexual transition takes time and energy, including energy expended on social interactions and competition among females vying for dominance. Since removal of terminal males by fishing will result in more sexual transitions, overall population fitness may be negatively impacted.
Greenback parrotfish are also targeted by recreational spearfishermen in Brazil, but the impact of this activity on the resource is largely unknown (Costa Nunes
Several studies have linked localized declines of greenback parrotfish populations to increased fishing effort (Floeter
Artisanal and commercial fishing pressure on greenback parrotfish will likely increase in the future as the country's coastal population grows and more traditional target species become less available due to overfishing. As easily accessible nearshore and shallower reefs become more depleted, fishing effort will likely shift to currently less-utilized, more remote, and deeper reefs. This is already evident in landings for the fishing port of Alcobaca, where a fleet of larger, freezer-equipped vessels return from long duration trips (up to several weeks) specifically targeting large greenback parrotfish on offshore reefs (Previero, 2014b). This level of fishing capacity and sophistication suggests that, over time, greenback parrotfish may become over-exploited throughout their range, including in more remote areas that were at one time considered inaccessible to local fishermen. This is
It is likely that greenback parrotfish are being overfished (Previero, 2014b) and that overfishing will continue into the future unless additional regulatory mechanisms are implemented and adequately enforced. In one very small area (Arraial do Cabo), fishing has led to the local extirpation of this species, although the contribution of this area to the population as a whole is likely minimal. As a protogynous hermaphrodite, the greenback parrotfish may be more susceptible to fishing methods that selectively target the largest individuals in the population. In addition, as one of the largest parrotfish species and with relatively late maturation, greenback parrotfish may be more vulnerable to overexploitation than smaller, faster-maturing parrotfish species (Taylor
Several marine protected areas (MPAs) have been established in Brazil on reefs inhabited by greenback parrotfish. Brazil's MPAs vary considerably in terms of size, ecosystem type, zoning regulations, management structure, fishing pressure, and level of compliance and enforcement. The Abrolhos National Marine Park was established by the Brazilian government in 1983 as a “no-take” protected area with limited use allowed by non-extractive activities (Cordell, 2006). Effective conservation policy was not implemented in the national park until the mid-1990s (Ferreira, 2005). The park, which covers an area of approximately 88,000 hectares, is divided into two discontinuous portions: (1) The coastal Timbebas Reef, which is considered poorly enforced, and (2) the offshore reefs of Parcel dos Abrolhos and fringing reefs of the Abrolhos Archipelago, which are more intensively enforced (Ferreira and Goncalves, 1999; Francini-Filho
Several studies have evaluated the effectiveness of Brazil's MPAs in protecting and restoring populations of overexploited reef species. Francini-Filho and Moura (2008a) estimated fish biomass and body size within the Itacolomis Reef no-take zone and at unprotected sites on the reef before (2001) and after initiation of protection (2002–2005). Greenback parrotfish was the dominant species found on the Itacolomis Reef in terms of biomass (37.4 percent of total biomass), and considered a major fishery resource in the study area. Biomass of this species increased significantly inside the reserve and also in unprotected reefs close (0–400 m) to its boundary (
Francini-Filho and Moura (2008b) compared fish biomass from 2001–2005 across several reef areas with different levels of protection. Their results varied depending on species considered and were sometimes confounded by year effects. For the greenback parrotfish, biomass was statistically higher within the newly established Itacolomis Reef's no-take reserve than in any of the following areas: Itacolomis Reef multi-use area, no-take reserves within Abrolhos National Marine Park, and other open access areas. Greenback parrotfish biomass within the Abrolhos National Marine Park no-take areas was not statistically different than biomass found at either the multi-use or open access sites surveyed. This may be partially due to the lack of enforcement at the Timbebas Reef no-take area (located within the national park) for many years after it was established in 1983 (Floeter
Floeter
The studies cited above provide ample evidence that, when fully protected and enforced, no-take reserves
Magris
Several researchers have noted the prevalence of high levels of poaching and inadequate enforcement within Brazilian “no-take” reserves (Ferreira and Goncalves, 1999; Cordell, 2006; Floeter
Aside from establishing no-take protected areas, few actions have been taken by the Brazilian government to manage reef fisheries. Traditional fishery management controls (
Studies indicating a declining trend in greenback parrotfish abundance over time are lacking. Increased fishing pressure on this species in the past two decades has likely reduced overall abundance (Previero, 2014b), but available data are insufficient to assess the magnitude of this decline. Despite the likely negative impact of fishing on abundance, mean densities recorded for greenback parrotfish are very high when compared to mean densities recorded for similar sized species in the north-western tropical Atlantic (Debrot
As a large-bodied, protogynous hermaphrodite with relatively late maturation, greenback parrotfish may be particularly susceptible to the effects of fishing on population growth rate or productivity. However, information indicating a significant decline in greenback parrotfish productivity is lacking. Greenback parrotfish productivity scores based on a Productivity and Susceptibility Analysis (PSA) are indicative of a species with average productivity (Previero, 2014b). Therefore, we conclude that it is unlikely that demographic factors related to growth rate/productivity contribute significantly to the current extinction risk of this species. Based on the limited available information, we find no evidence to suggest that demographic factors related to spatial structure/connectivity pose an extinction risk to the greenback parrotfish. This species is widely distributed throughout its range, can recruit to a variety of habitats, and shows little evidence of population fragmentation. We conclude that it is very unlikely that demographic factors related to spatial structure/connectivity
Although there is evidence that some portion of greenback parrotfish habitat has been modified and degraded, studies indicating that habitat associated changes are contributing significantly to the extinction risk of this species are lacking. Therefore, based on the available scientific and commercial information, we conclude that it is unlikely that the threat of destruction, modification, or curtailment of greenback parrotfish habitat or range contributes or will contribute significantly to the extinction risk of this species either now or in the foreseeable future.
The cumulative research indicates that greenback parrotfish are heavily exploited by fishing throughout much of their range, fishing pressure has reduced the abundance of greenback parrotfish, and in some localities the reduction has been significant. Based on the information available, and taking into account the scientific uncertainty associated with this threat, we conclude that the threat of overutilization from artisanal and commercial fishing is somewhat likely to contribute to the extinction risk of this species both now and in the foreseeable future. Given the systemic problems associated with enforcement of no-take MPAs in Brazil and the general lack of traditional fishing regulations designed to limit catch and effort of reef fishes, we also conclude that the threat of inadequate existing regulatory mechanisms is somewhat likely to contribute to the extinction risk of this species both now and in the foreseeable future.
The extinction risk analysis of Salz (2015) found that the greenback parrotfish currently faces a low risk of extinction throughout its range. Fishing overutilization and the inadequacy of existing fishing regulations were identified as threats that are somewhat likely to contribute to the risk of greenback parrotfish extinction. However, while fishing has resulted in a decline in abundance, greenback parrotfish are still a commonly occurring species on many Brazilian reefs, and represent a relatively large proportion of the total fish biomass on some reefs. All of the demographic factors evaluated were categorized as either unlikely or very unlikely to contribute significantly to the current extinction risk. There are no indications that the greenback parrotfish is currently at risk of extinction based on demographic viability criteria. After reviewing the best available scientific data and the extinction risk evaluation, we agree with Salz (2015) and conclude that the present risk of extinction for the greenback parrotfish is low.
Salz (2015) found that the greenback parrotfish's risk of extinction in the foreseeable future is between low and moderate. It is likely that fishing overutilization will further reduce greenback parrotfish abundance in the future, thus increasing the overall risk of extinction. However, as mentioned above, there are no indications that the greenback parrotfish is at risk of extinction based on demographic viability criteria. This species is still relatively abundant in parts of its range, and the available information does not indicate that fishing overutilization will reduce abundance to the point at which the greenback parrotfish would be in danger of extinction in the foreseeable future. Based on the best available scientific data and the extinction risk evaluation, we agree with Salz (2015) and conclude that the greenback parrotfish's risk of extinction in the foreseeable future is between low and moderate—
Though we find that the greenback parrotfish is not in danger of extinction now or in the foreseeable future throughout its range, under the SPR Policy, we must go on to evaluate whether the species is in danger of extinction, or likely to become so in the foreseeable future, in a significant portion of its range (79 FR 37578; July 1, 2014). To make this determination, we followed the SPR Policy, as described above in the “Significant Portion of Its Range” section for the undulate ray, and first evaluated whether substantial information indicates that the members of the species in a particular area are likely both to meet the test for biological significance and to be currently endangered or threatened in that area.
Applying the policy to the greenback parrotfish, we first evaluated whether there is substantial information indicating that any particular portion of the species' range is “significant.” Greenback parrotfish are found only in Brazilian waters and are considered widely distributed throughout their range from the Manuel Luiz Reefs off the northern coast to Santa Catarina on the southeastern coast (Moura
After a review of the best available information, we could identify no particular portion of the greenback parrotfish range where its contribution to the viability of the species is so important that, without the members in that portion, the species would be at risk of extinction, or likely to become so in the foreseeable future, throughout all of its range. Therefore, we find that there is no portion of the greenback parrotfish range that qualifies as “significant” under the SPR Policy, and thus our SPR analysis ends.
Based on our consideration of the best available data, as summarized here and in Salz (2015), we determine that the present risk of extinction for the greenback parrotfish is low, and that the greenback parrotfish's risk of extinction in the foreseeable future is between low and moderate—
A complete list of the references used in this proposed rule is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Oceanic and Atmospheric Administration, NOAA, Department of Commerce DOC.
Notice of intent.
Notice is hereby given that the U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), intends to grant to Handix, LLC of Boulder, Colorado, an exclusive global license to manufacture and distribute its “PRINTED OPTICAL SPECTROMETER (POPS), and its “PORTABLE AEROSOL GENERATOR”.
Comments must be received on or before June 5, 2015.
Send comments to NOAA Technology Partnerships Office, SSMC4 Room 7605, 1305 East West Highway, Silver Spring, Maryland 20910.
Derek Parks, NOAA Technology Transfer Program Manager, at:
The Federal Government's rights in this invention are assigned to the United States of America, as represented by the Secretary of Commerce. It is in the public interest to so license this invention, as Handix, LLC of Boulder, Colorado, has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the NOAA Technology Partnerships Office receives written evidence and argument which establishes the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
United States Patent and Trademark Office, Commerce.
Extension of the comment period.
The United States Patent and Trademark Office (USPTO) recently launched a comprehensive and enhanced quality initiative. This initiative began with a request for public comments on a set of proposals for enhancing patent quality through submission of written comments. Public input on this initiative was also received through discussion at a two-day “Quality Summit,” held on March 25 and 26, 2015, at the USPTO headquarters in Alexandria, Virginia. The USPTO is extending the comment period to ensure that all stakeholders have sufficient opportunity to submit comments on its new enhanced quality initiative.
To be assured of consideration, written comments must be received on or before May 20, 2015.
Written comments should be sent by electronic mail message over the Internet addressed to:
Although comments may be submitted by postal mail, the USPTO prefers to receive comments by electronic mail message over the Internet in order to facilitate sharing the received comments with the public. Electronic comments are preferred to be submitted in plain text, but also may be submitted in ADOBE® portable document format or MICROSOFT® WORD format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.
The comments will be available for public inspection at the Office of the Commissioner for Patents, currently located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the USPTO's Internet Web site (
Michael T. Cygan, Senior Legal Advisor, at (571) 272–7700; Maria Nuzzolillo, Legal Advisor, at (571) 272–8150; or Jeffrey R. West, Legal Advisor, at (571) 272–2226.
The USPTO is extending the period for public comment on its Enhanced Patent Quality Initiative. The USPTO launched a comprehensive and enhanced quality initiative beginning with a request for public comments on a set of six proposals outlined in a
In view of the substantial public interest in this initiative, the number and complexity of the issues involved, and requests from the public for an extension of the time to submit comments, the USPTO is now extending the period for submission of public comments until May 20, 2015.
Members of the public are invited to submit written comments that address the proposals outlined in the February 5, 2015,
Office of Career, Technical and Adult Education (OCTAE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before June 10, 2015.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Braden Goetz, 202–245–7405.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Fowler Ridge IV Wind Farm LLC.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on April 30, 2015, Municipal Energy Agency of Mississippi submitted its tariff filing per 35.28(e): Revenue Requirement for Reactive Service to be effective May 1, 2015.
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. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
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
On April 27, 2015, the Commission issued an order in Docket No. EL15–39–000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of Southern Companies' market-based rates in the Southern Company Services, Inc., PowerSouth Energy Cooperative, South Carolina Public Service Authority, South Carolina Electric & Gas Company, and City of Tallahassee balancing authority areas.
The refund effective date in Docket No. EL15–39–000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on April 30, 2015, Municipal Energy Agency of Mississippi submitted its tariff filing per 35.28(e): Revenue Requirement for Reactive Service to be effective May 1, 2015.
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. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
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
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Description: Section 205(d) rate filing per 35.13(a)(2)(iii): TNC–OCI Alamo 7 Interconnection Agreement to be effective 4/9/2015.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric proceeding has been initiated by the Commission:
a. Type of Proceeding: Termination of exemption by implied surrender.
b. Project No.: 10200–014.
c. Date Initiated: May 4, 2015.
d. Exemptee: Congdon Pond Hydro, LLC.
e. Name and Location of Project: The Congdon Dam Hydroelectric Project is located on the Oxoboxo Brook in New London County, Connecticut.
f.
g. Exemptee Contact Information: Mr. John Morte, President and Treasurer, Congdon Pond Hydro, LLC., 63 Hayward Street, Milford, MA (508) 333–6743.
h.
i. Deadline for filing comments, protests, or motions to intervene is 30 days from the issuance of this notice by the Commission. Please file your submittal electronically via the Internet (eFiling) in lieu of paper. Please refer to the instructions on the Commission's Web site under
j. Description of Project Facilities: (1) A 35-foot-high by 170-foot-long dam, with 7-inch-high flashboards; (2) a 6.5-acre reservoir with a storage capacity of 130 acre-feet; (3) two outlet works with an overall length of 23 feet; (4) a 5-foot-diameter by 70-foot-long penstock; (5) a powerhouse containing one 60-kilowatts generating unit; (6) a tailrace; and (7) appurtenant facilities.
k. Description of Proceeding: The exemptee is in violation of Standard Article 1 of its exemption, which was granted on December 9, 1987 (41 FERC ¶ 62,224). Article 1 provides, among other things, that the Commission may terminate an exemption if any term or condition of the exemption is violated.
Commission records show that Congdon Dam Hydroelectric Project has been non-operational since May 2002. After several years of correspondence regarding restoring project operation, the exemptee has become non-responsive. The exemptee most recently filed with the Commission on September 18, 2014 a plan and schedule to restore project operation. In its filing, the exemptee also requested to extend the date to restore project operation to October 1, 2015. By letter dated October 8, 2014, the Commission acknowledged the filing and required the exemptee to file a status update by January 15, 2015 to show continued progress towards restoring project operation. The filing should also include an application to amend the exemption to reflect the new transmission line alignment. The exemptee did not do so. By letter dated April 9, 2015, the Commission again required the exemptee to file by April 24, 2014, a plan and schedule to restore operational status, and an application to amend the exemption if the exemptee still intends to change the transmission line alignment. The exemptee was notified that failure to do so would result in an implied surrender of the project exemption. To date, the exemptee has not filed a response and the project remains inoperable.
l. This notice is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE., Washington, DC 20426. The filing may also be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .212, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular proceeding.
o.
p. Agency Comments—Federal, state, and local agencies are invited to file comments on the described proceeding. If any agency does not file comments within the time specified for filing comments, it will be presumed to have no comments.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of final action.
On April 20, 2015, the Environmental Protection Agency (EPA) issued new and revised emission factors for flares and other refinery process units and issued its final determination that revisions to existing emissions factors for tanks and wastewater treatment systems are not necessary. The EPA finalized these actions in compliance with a consent decree entered into with Air Alliance Houston, Community In-Power and Development Association, Inc., Louisiana Bucket Brigade and Texas Environmental Justice Advocacy Services (“Plaintiffs”).
You may review copies of the final actions taken and the supporting information electronically at:
Ms. Gerri Garwood, Measurement Policy Group (MPG), Sector Policies and Programs Division (D243–05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: (919) 541–2406; fax number: (919) 541–1039; and email address:
As described above, the EPA finalized these actions to fulfill its obligations under the consent decree, which resolves litigation in which Plaintiffs alleged that the EPA failed to perform nondiscretionary duties pursuant to Clean Air Act (CAA) section 130 to review, and, if necessary, revise the emissions factors for volatile organic compounds (VOC) for flares, liquid storage tanks (“tanks”), and wastewater collection, treatment and storage systems (“wastewater treatment systems”) at least once every 3 years. See
The EPA evaluated all of the data collected during the 2011 Refinery Information Collection Request (2011 Refinery ICR), the data referenced in the Complaint, other test data available to the agency for flares, tanks and wastewater treatment systems, and data submitted during the public comment period. Based on this evaluation, we finalized a new VOC emissions factor for flares. We also issued final emissions factors (or emissions estimation methodologies) for certain refinery operations and pollutants that are not covered by the consent decree. The other emissions factors include carbon monoxide (CO) for flares; oxides of nitrogen (NO
We previously developed a refinery emissions estimation protocol in response to a Data Quality Act petition which was used in the 2011 Refinery ICR. The refinery emissions estimation protocol lists and ranks available methods for calculating emissions from refineries. We finalized revisions to the Refinery Protocol, with some changes to address specific comments. Specifically, we updated Sections 1, 5, and 6 of the refinery emissions estimation protocol with these new emission factors. However, we are not requiring the use of the Refinery Protocol, just as we do not require the use of AP–42. It is simply another tool for use in estimating emissions when site-specific test data do not exist or are not available. We consider the Refinery Protocol to provide site-specific emissions inventory guidance that will result in more accurate and complete emissions inventories.
Based on our review of the available emissions data for tanks and wastewater treatment systems, we found that the data reviewed generally showed similar results between measured data and the existing emissions estimation methods. Therefore, we issued a final determination that revisions of the VOC emissions factors for tanks and wastewater treatment systems are not necessary.
Additionally, while we proposed a revised NO
Per the requirements of the consent decree, these final actions were issued on April 20, 2015. To support these findings, we developed two reports: “EPA Review of Available Documents and Rationale in Support of Final Emissions Factors and Negative Determinations for Flares, Tanks, and Wastewater Treatment Systems,” and “Review of Emissions Test Reports for Emissions Factors Development for Flares and Certain Refinery Operations.” We also prepared the following report to respond to the comments received during the public comment period: “Background Information for Final Emissions Factors Development for Flares and Certain Refinery Operations and Final Determination for No Changes to VOC Emissions Factors for Tanks and Wastewater Treatment Systems, Summary of Public Comments and Responses.” These reports, along with links to the updated chapters in AP–42 and the Refinery Protocol, were posted
These actions constitute final agency action of national applicability for purposes of section 307(b)(1) of the CAA. Pursuant to CAA section 307(b)(1), judicial review of these final agency actions may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by July 10, 2015. Judicial review of these final agency actions may not be obtained in subsequent proceedings, pursuant to CAA section 307(b)(2). These actions are not a rulemaking and are not subject to the various statutory and other provisions applicable to a rulemaking.
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 June 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.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202–395–5167 or via Internet at
Benish Shah, Office of Managing Director, (202) 418–7866.
The Order the Commission adopted on May 19, 2005, sets forth rules requiring providers of VoIP services that interconnect with the nation's existing public switched telephone network (interconnected VoIP services) to supply E911 capabilities to their customers. To ensure E911 functionality for customers of VoIP service providers the Commission requires the following information collections:
A. Location Registration. Requires providers to interconnected VoIP services to obtain location information from their customers for use in the routing of 911 calls and the provision of location information to emergency answering points.
B. Provision of Automatic Location Information (ALI). Interconnected VoIP service providers will place the location information for their customers into, or make that information available through, specialized databases maintained by local exchange carriers (and, in at least one case, a state government) across the country.
C. Customer Notification. Requires that all providers of interconnected VoIP are aware of their interconnected VoIP service's actual E911 capabilities. That all providers of interconnected VoIP service specifically advise every subscriber, both new and existing, prominently and in plain language, the circumstances under which E911 service may not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service.
D. Record of Customer Notification. Requires VoIP providers to obtain and keep a record of affirmative acknowledgement by every subscriber, both new and existing, of having received and understood this advisory.
E. User Notification. In addition, in order to ensure to the extent possible that the advisory is available to all potential users of an interconnected VoIP service, interconnected VoIP service providers must distribute to all subscribers, both new and existing, warning stickers or other appropriate labels warning subscribers if E911 service may be limited or not available and instructing the subscriber to place them on or near the customer premises
Federal Election Commission.
Wednesday, May 6, 2015 at 11:00 a.m.
999 E Street NW., Washington, DC.
This meeting was closed to the public.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action. Internal personnel rules and procedures or matters affecting a particular employee.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
Commission To Eliminate Child Abuse and Neglect Fatalities, General Services Administration.
Meeting notice.
The Commission to Eliminate Child Abuse and Neglect Fatalities (CECANF), a Federal Advisory Committee established by the Protect Our Kids Act of 2012, will hold a meeting open to the public on Tuesday, May 19, 2015 and Wednesday, May 20, 2015 in Salt Lake City, Utah.
The meeting will be held on Tuesday, May 19, 2015, from 8:00 a.m. to 5:15 p.m., and Wednesday, May 20, 2015, from 8:00 a.m. to 12:30 p.m., Mountain Daylight Time.
CECANF will convene its meeting at the Sheraton, 150 West 500 South, Salt Lake City, Utah, 84101. This site is accessible to individuals with disabilities. The meeting also will be made available via teleconference and/or webinar.
Submit comments identified by “Notice–CECANF–2015–04,” by either of the following methods:
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Visit the CECANF Web site at
However, members of the public wishing to comment should follow the steps detailed under the heading
The universe of information collection proposed for HPOG Next Gen includes the HPOG Next Gen Participant Accomplishment and Grant Evaluation System (PAGES). PAGES is a performance management system that will collect information from all grantees on their programs and participants on a semi-annual basis over the grant period of performance and intake information on eligible applicants (both treatment and control) through baseline data collection. The data system will meet the performance data needs of the HPOG Next Gen grantees and of the ACF Office of Family Assistance to monitor the performance of the grants and prepare the report to Congress on the grants, as well as support an impact study, a coordinated Tribal evaluation, and other future research and evaluation efforts sponsored by ACF.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting that any industry organizations interested in participating in the selection of a nonvoting industry representative to serve on the Vaccines and Related Biological Products Advisory Committee for the Center for Biologics Evaluation and Research (CBER) notify FDA in writing. FDA is also requesting nominations for a nonvoting industry representative(s) to serve on the Vaccines and Related Biological Products Advisory Committee. A nominee may either be self-nominated or nominated by an organization to serve as a nonvoting industry representative. Nominations will be accepted for current vacancies effective with this notice.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests must send a letter stating that interest to the FDA by June 10, 2015, (see sections I and II of this document for further details). Concurrently, nomination materials for prospective candidates should be sent to FDA by June 10, 2015.
All statements of interest from interested industry organizations interested in participating in the selection process of nonvoting industry representative nomination should be sent to Sujata Vijh (see
Sujata Vijh, Division of Scientific Advisors and Consultants, Center for Biologics Evaluation and Research, 10903 New Hampshire Ave., Bldg. 71, Rm. 6128, Silver Spring, MD 20993–0002, 240–402–7107, FAX: 301–595–1307, email:
The Agency intends to add a nonvoting industry representative(s) to the following advisory committee:
The CBER Vaccines and Related Biological Products Advisory Committee (the Committee) reviews and evaluates data concerning the safety, effectiveness, and appropriate use of vaccines and related biological products which are intended for use in the prevention, treatment, or diagnosis of human diseases, and, as required, any other product for which FDA has regulatory responsibility. The Committee also considers the quality and relevance of FDA's research program which provides scientific support for the regulation of these products and makes appropriate recommendations to the Commissioner of Food and Drugs.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests should send a letter stating that interest to the FDA contact (see
Individuals may self-nominate and/or an organization may nominate one or more individuals to serve as a nonvoting industry representative. Contact information, a current curriculum vitae, and the name of the committee of interest should be sent to the FDA Advisory Committee Membership Nomination Portal (see
FDA seeks to include the views of women, and men, members of all racial and ethnic groups, and individuals with and without disabilities on its advisory committees and, therefore encourages nominations of appropriately qualified candidates from these groups.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14, relating to advisory committees.
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 Kristina Toliver 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).
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: NIMH Project Clearance Liaison, Science Policy and Evaluation Branch, OSPPC, NIMH, NIH, Neuroscience Center, 6001 Executive Boulevard, MSC 9667, Rockville Pike, Bethesda, MD 20892, or call 301–443–4335 or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 38.
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.
Notice is hereby given of a change in the meeting of the National Institute of Nursing Research Special Emphasis Panel, June 4, 2015, 11:00 a.m. to June 4, 2015, 1:00 p.m., National Institutes of Health, One Democracy Plaza, 6701 Democracy Boulevard, Bethesda, MD 20892 which was published in the
The meeting notice is amended to change the date of the meeting from June 4, 2015 to June 11, 2015. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following 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
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/contract proposals 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/contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, National Institute of Biomedical Imaging and Bioengineering.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Biomedical Imaging and Bioengineering, including consideration of personal qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the National Offshore Safety Advisory Committee. The National Offshore Safety Advisory Committee provides advice and recommendations to the Department of Homeland Security on matters relating to activities directly involved with or in support of the exploration of offshore mineral and energy resources insofar as they relate to matters within Coast Guard jurisdiction.
Completed applications should reach the Coast Guard on or before
Applicants should send a cover letter expressing interest in an appointment to the National Offshore Safety Advisory Committee that also identifies which membership category the applicant is applying under, along with a resume detailing the applicant's experience via one of the following methods:
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Mr. Scott E. Hartley, Alternate Designated Federal Officer of the National Offshore Safety Advisory Committee, Commandant, (CG–OES–2)/NOSAC U.S. Coast Guard, 2703 Martin Luther King Jr. Avenue SE., STOP 7509, Washington, DC 20593–7509; email
The National Offshore Safety Advisory Committee name is a Federal advisory committee established in accordance with the provisions of the Federal Advisory Committee Act, (5 U.S.C. Appendix) to advise the Secretary of Department of Homeland Security on matters relating to activities directly involved with or in support of the exploration of offshore mineral and energy resources insofar as they relate to matters within Coast Guard jurisdiction.
The Committee expects to meet twice a year: April in New Orleans, LA, and November in Houston, TX. Each National Offshore Safety Advisory Committee member serves a term of office up to three (3) years. Members may be considered to serve a maximum of two consecutive terms. All members serve at their own expense and receive no salary or reimbursement of travel expenses, or other compensation from the Federal Government.
We will consider applications for the four positions listed below that will become vacant on January 31, 2016:
(a) One member representing companies, organizations, enterprises, or similar entities engaged in offshore operations, who should have recent practical experience on vessels or units involved in the offshore industry;
(b) One member representing companies, organizations, enterprises, or similar entities providing subsea engineering, construction or remotely operated vehicle support to the offshore industry;
(c) One member representing companies, organizations, enterprises, or similar entities providing diving services to the offshore industry; and
(d) One member of the general public.
To be eligible, applicants for positions (a), (b) or (c) should be employed by companies, organizations, enterprises or similar entities, have expertise, knowledge and experience regarding the technology, equipment and techniques that are used or are being developed for use in the exploration for, and the recovery of, offshore mineral resources.
The General Public Member, position (d), will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18 United States Code. As a candidate for appointment as a Special Government Employee, applicants are required to complete Confidential Financial Disclosure Reports (OGE Form 450). Coast Guard may not release the reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a). Applicants can obtain this form by going to the Web site of the Office of Government Ethics (
Registered lobbyists are not eligible to serve on Federal advisory committees in an individual capacity. See “Revised Guidance on Appointment of Lobbyist to Federal Advisory Committees, Boards and Commissions” (79 FR 47482, August 13, 2014). The position we list for a member from the General Public would be someone appointed in their individual capacity and would be designated a Special Government Employee as defined in 202 (a) of Title 18, United States Code. Registered lobbyists are lobbyists required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Pub. L. 104–65; as amended by Title II of Pub. L. 110–81).
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disabilities and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are interested in applying to become a member of the Committee, send your cover letter and resume to Mr. Scott Hartley, Alternate Designated Federal Officer of the National Offshore Safety Advisory Committee by email or mail according to instructions in the
Note, that during the vetting process, applicants may be asked to provide their date of birth and social security number. All email submittals will receive email receipt confirmation.
To visit our online docket, go to
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; reinstatement of a previously approved collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security 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: Passenger List/Crew List (CBP Form I–418). CBP is proposing that this information collection be reinstated with a change to the burden hours. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before June 10, 2015 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177, at 202–325–0265.
This proposed information collection was previously published in the
Privacy Office, Department of Homeland Security.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to update and reissue a current Department of Homeland Security system of records titled, “Department of Homeland Security/U.S. Customs and Border Protection-007 Border Crossing Information(BCI) System of Records.” This system of records allows U.S. Customs and Border Protection to collect and maintain records on border crossing information for all individuals who enter, are admitted or paroled into, and (when available) exit from the United States, regardless of method or conveyance. Border crossing information includes certain biographic and biometric information; photographs; certain mandatory or voluntary itinerary information provided by air, sea, bus, and rail carriers or any other forms of passenger transportation; and the time and location of the border crossing.
This system of records notice was previously published in the
The Department of Homeland Security/U.S. Customs and Border Protection is updating this system of records notice to provide notice of the collection of biometric information from U.S. citizens and certain aliens upon arrival to, and departure from, the United States.
The exemptions for the existing system of records notice published May 28, 2013 (78 FR 31958) continue to apply for this updated system of records for those categories of records listed in the previous BCI System of Records Notice. However, U.S. Customs and Border Protection will issue an updated notice and Final Rule to address that certain records ingested from the Advance Passenger Information System (APIS) (see DHS/CBP–005 Advance Passenger Information System (APIS) SORN, 80 FR 13407 (March 13, 2015)) will continue to be covered by the exemptions claimed for those records in that system pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552a(k)(2). The Department of Homeland Security will include this system in its inventory of record systems.
This updated system will be effective upon the public display of this notice. Although this system is effective upon publication, DHS will accept and consider comments from the public and evaluate the need for any revisions to this notice.
You may submit comments, identified by docket number DHS–2015–0021 by one of the following methods:
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For general questions, please contact: John Connors (202) 344–1610, Privacy Officer, U.S. Customs and Border Protection, Privacy and Diversity Office, 1300 Pennsylvania Avenue, Washington, DC 20229. For privacy questions, please contact: Karen L. Neuman, (202) 343–1717, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of
CBP's priority mission is to prevent terrorists and terrorist weapons from entering the country while facilitating legitimate travel and trade. To facilitate this mission, CBP maintains border crossing information about all individuals who enter, are admitted or paroled into, and (when available) exit from the United States regardless of method or conveyance. Border crossing information includes certain biographic and biometric information; photographs; certain mandatory or voluntary itinerary information provided by air, sea, bus, and rail carriers or any other forms of passenger transportation; and the time and location of the border crossing. Border crossing information resides on the TECS (not an acronym) information technology platform. DHS/CBP is updating this system of records to provide notice to the public about the update and expansion of the categories of records as part of DHS's ongoing effort to better reflect the categories of records in its collection of information. DHS/CBP previously published this system of records notice in the
CBP is responsible for collecting and reviewing border crossing information from travelers entering and departing the United States as part of DHS/CBP's overall border security and enforcement missions. All individuals crossing the border are subject to CBP processing upon arrival in the United States. Each traveler entering the United States is required to establish his or her identity, nationality, and admissibility, as applicable, to the satisfaction of a CBP officer during the clearance process. To manage this process, CBP creates a record of an individual's admission or parole into the United States at a particular time and port of entry. CBP also collects information about U.S. citizens and certain aliens (in-scope travelers pursuant to 8 CFR 215.8, “requirements for biometric identifiers from aliens on departure from the United States”) upon departure from the United States for law enforcement purposes and to document their border crossing.
DHS is statutorily mandated to create and integrate an automated entry and exit system that records the arrival and departure of aliens, verifies alien identities, and authenticates alien travel documents through the comparison of biometric identifiers (8 U.S.C. 1365(b)). Certain aliens may be required to provide biometrics (including digital fingerprint scans, palm prints, photographs, facial and iris images, or other biometric identifiers) upon arrival in or departure from the United States. The biometric data is stored in the Automated Biometric Identification System (IDENT) information technology platform. IDENT stores and processes biometric data (
Previously DHS established the United States Visitor and Immigrant Status Indicator Technology (US–VISIT) Program to manage an automated entry and exit system. On March 16, 2013, US–VISIT's entry and exit operations (including deployment of a biometric exit system) were transferred to CBP through the Consolidated and Further Continuing Appropriations Act of 2013 (Pub. L. 113–6, H.R. 933). The Act also transferred US–VISIT's overstay analysis function to U.S. Immigration and Customs Enforcement (ICE) and US–VISIT's biometric identity management services to the Office of Biometric Management (OBIM), which is a newly-created office within the National Protection and Programs Directorate (NPPD). CBP assumed biometric entry and exit operations on April 1, 2013.
CBP continues to develop mechanisms to collect biometric information from departing aliens since assuming responsibility for US–VISIT's entry and exit operations. During these operations, CBP officers may employ technology (
Collection of additional biometric information from individuals crossing the border (such as information regarding scars, marks, tattoos, and palm prints) aids biometric sharing between the Department of Justice (DOJ) Integrated Automated Fingerprint Identification System (IAFIS)/Next Generation Identification (NGI) and the IDENT system. The end result is enhanced access to (and in some cases acquisition of) IAFIS/NGI information by the IDENT system and its users. DHS, DOJ/FBI, and the Department of State (DOS)/Bureau of Consular Services entered into a Memorandum of Understanding (MOU) for Improved Information Sharing Services in 2008. The MOUs established the framework for sharing information in accordance with an agreed-upon technical solution for expanded IDENT/IAFIS/NGI interoperability, which provides access to additional data for a greater number of authorized users.
CBP collects border crossing information stored in this system of records through a number of sources, for example: (1) Travel documents (
DHS/CBP is updating the categories of records to provide notice that CBP is collecting biometrics such as digital fingerprints, photographs, and iris scans from certain non-U.S. citizens at the time of the border crossing or in support of their use of Global Entry or another trusted traveler program. In addition, CBP is updating the categories of records in the SORN to provide notice that CBP plans to collect information regarding scars, marks, tattoos, and palm prints from individuals at the border to aid biometric interoperability between the IAFIS/NGI and the IDENT system. Finally, CBP is updating the categories of records associated with APIS transmissions to better reflect the information collected and maintained in the DHS/CBP–007 BCI SORN.
Consistent with DHS's information sharing mission, information stored in the DHS/CBP–007 BCI SORN may be shared with other DHS components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions.
The exemptions for the existing system of records notice published May 28, 2013 (78 FR 31958) continue to apply for this updated system of records for those categories of records listed in the previous System of Records Notice. However, several new categories of records may contain law enforcement sensitive information. Due to the nature of this information, CBP will issue an updated notice and final rule for proposed exemptions for these new categories of records pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552 a(k)(2). Furthermore, to the extent certain categories of records are ingested from other systems, the exemptions applicable to the source systems will remain in effect.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the Federal Government collects, maintains, uses, and disseminates individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals when systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Below is the description of the DHS/CBP–007 Border Crossing Information (BCI) System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)–007.
DHS/CBP–007 Border Crossing Information (BCI).
Unclassified, Sensitive, For Official Use Only (FOUO), and Law Enforcement-Sensitive (LES).
CBP maintains records at CBP Headquarters in Washington, DC and at field offices. This computer database is located at CBP National Data Center (NDC) in Washington, DC. Computer terminals are located at customhouses, border ports of entry, airport inspection facilities under the jurisdiction of DHS, and other locations at which DHS authorized personnel may be posted to facilitate DHS's mission. Terminals may also be located at appropriate facilities for other participating government agencies.
Individuals with records stored in BCI includes U.S. citizens, lawful permanent residents (LPR), and immigrant and non-immigrant aliens who lawfully cross the U.S. border by air, land, or sea, regardless of method of transportation or conveyance.
CBP collects and stores the following records in the BCI system as border crossing information:
• Full name (last, first, and, if available, middle);
• Date of birth;
• Gender;
• Travel document type and number (
• Issuing country or entity and expiration date;
• Photograph (when available);
• Country of citizenship;
• Tattoos;
• Scars;
• Marks;
• Palm prints;
• Digital fingerprints;
• Photographs;
• Digital iris scans;
• Radio Frequency Identification (RFID) tag number(s) (if land or sea border crossing);
• Date and time of crossing;
• Lane for clearance processing;
• Location of crossing;
• Secondary Examination Status; and
• For land border crossings only, License Plate number or Vehicle Identification Number (VIN) (if no plate exists).
CBP maintains in BCI information derived from an associated APIS transmission (when applicable), including:
• Full name (last, first, and, if available, middle);
• Date of birth;
• Gender;
• Country of citizenship;
• Passport/alien registration number and country of issuance;
• Passport expiration date;
• Country of residence;
• Status on board the aircraft;
• Travel document type;
• United States destination address (for all private aircraft passengers and crew, and commercial air, rail, bus, and vessel passengers except for U.S. Citizens, LPRs, crew, and those in transit);
• Place of birth and address of permanent residence (commercial flight crew only);
• Pilot certificate number and country of issuance (flight crew only, if applicable);
• Passenger Name Record (PNR) locator number;
• Primary inspection lane;
• ID inspector;
• Records containing the results of comparisons of individuals to information maintained in CBP's law enforcement databases as well as information from the Terrorist Screening Database (TSDB);
• Information on individuals with outstanding wants or warrants; and
• Information from other government agencies regarding high risk parties.
CBP collects records under the Entry/Exit Program with Canada, such as border crossing data from the CBSA, including:
• Full name (last, first, and if available, middle);
• Date of Birth;
• Nationality (citizenship);
• Gender;
• Document Type;
• Document Number;
• Document Country of Issuance;
• Port of entry location (Port code);
• Date of entry; and
• Time of entry.
In addition, air and sea carriers or operators covered by the APIS rules and rail and bus carriers (to the extent voluntarily applicable) also transmit or provide the following information to CBP for retention in BCI:
• Airline carrier code;
• Flight number;
• Vessel name;
• Vessel country of registry/flag;
• International Maritime Organization number or other official number of the vessel;
• Voyage number;
• Date of arrival/departure;
• Foreign airport/port where the passengers and crew members began their air/sea transportation to the United States;
• For passengers and crew members destined for the United States:
○ The location where the passengers and crew members will undergo customs and immigration clearance by CBP.
• For passengers and crew members who are transiting through (and crew on flights over flying) the United States and not clearing CBP:
○ The foreign airport/port of ultimate destination; and
○ Status on board (whether an individual is crew or non-crew).
• For passengers and crew departing the United States:
○ Final foreign airport/port of arrival.
Other information also stored in this system of records includes:
• Aircraft registration number provided by pilots of private aircraft;
• Type of aircraft;
• Call sign (if available);
• CBP issued decal number (if available);
• Place of last departure (
• Date and time of aircraft arrival;
• Estimated time and location of crossing U.S. border or coastline;
• Name of intended airport of first landing, if applicable;
• Owner or lessee name (first, last, and middle, if available, or business entity name);
• Owner or lessee contact information (address, city, state, zip code, country, telephone number, fax number, and email address, pilot, or private aircraft pilot name);
• Pilot information (license number, street address (number and street, city state, zip code, country, telephone number, fax number, and email address));
• Pilot license country of issuance;
• Operator name (for individuals: last, first, and middle, if available; or name of business entity, if available);
• Operator street address (number and street, city, state, zip code, country, telephone number, fax number, and email address);
• Aircraft color(s);
• Complete itinerary (foreign airport landings within 24 hours prior to landing in the United States);
• 24-hour emergency point of contact information (
○ Full name (last, first, and middle (if available)) and telephone number;
• Incident to the transmission of required information via eAPIS (for general aviation itineraries, pilot, and passenger manifests), records will also incorporate the pilot's email address.
To the extent private aircraft operators and carriers operating in the land border environment may transmit APIS, similar information may also be recorded in BCI by CBP with regard to such travel. CBP also collects the license plate number of the conveyance (or VIN number when no plate exists) in the land border environment for both arrival and departure (when departure information is available).
Authority for BCI is provided by the Enhanced Border Security and Visa Entry Reform Act of 2002 (Pub. L. 107–173, 116 Stat. 543 (2002)); the Aviation and Transportation Security Act of 2001 (Pub. L. 107–71, 115 Stat. 597); the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108–458, 118 Stat. 3638 (2004)); the Immigration and Nationality Act, as amended (8 U.S.C. 1185 and 1354); and the Tariff Act of 1930, as amended (19 U.S.C. 1322–1683g, including 19 U.S.C. 66, 1433, 1454, 1485, 1624 and 2071).
CBP collects and maintains this information to vet and inspect persons arriving in or departing from the United States; to determine identity, citizenship, and admissibility; and to identify persons who: (1) May be (or are suspected of being) a terrorist or having affiliations to terrorist organizations; (2) have active warrants for criminal activity; (3) are currently inadmissible or have been previously removed from the United States; or (4) have been otherwise identified as potential security risks or raise a law enforcement concern. For immigrant and non-immigrant aliens, the information is also collected and maintained to ensure information related to a particular border crossing is available for providing any applicable benefits related to immigration or other enforcement purposes. Lastly, CBP maintains information in BCI to retain a historical record of persons crossing the border to facilitate law enforcement, counterterrorism, and benefits processing.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the United States Attorneys, or other federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any Component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise, there is a risk of identity theft or fraud, harm to economic or property interests, harm to an
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To appropriate federal, state, tribal, local, or foreign governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, when DHS believes the information would assist enforcement of applicable civil or criminal laws.
I. To the CBSA for law enforcement and immigration purposes, as well as to facilitate cross-border travel when an individual enters the United States from Canada.
J. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations when DHS reasonably believes there to be a threat (or potential threat) to national or international security for which the information may be relevant in countering the threat (or potential threat).
K. To a federal, state, tribal, or local agency, other appropriate entity or individual, or foreign governments, in order to provide relevant information related to intelligence, counterintelligence, or antiterrorism activities authorized by U.S. law, Executive Order, or other applicable national security directive.
L. To an organization or individual in either the public or private sector (foreign or domestic) when there is a reason to believe that the recipient is (or could become) the target of a particular terrorist activity or conspiracy, or when the information is relevant and necessary to the protection of life or property.
M. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations for the purposes of protecting the vital interests of the data subject or other persons, including to assist such agencies or organizations in preventing exposure to or transmission of a communicable or quarantinable disease, to combat other significant public health threats, or to provide appropriate notice of any identified health threat or risk.
N. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings.
O. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation.
P. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations when DHS is aware of a need to use relevant data for purposes of testing new technology.
Q. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
CBP stores records in this system electronically in the operational system or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, digital media and CD–ROM.
CBP retrieves records by name or other personal identifiers listed in the categories of records, above.
DHS/CBP safeguards records in this system in accordance with applicable rules and policies, including all applicable DHS automated systems security and access policies. Strict controls are imposed to minimize the risk of compromising the information that is being stored. CBP limits access to BCI to those individuals who have a need to know the information for the performance of their official duties and who also have appropriate clearances or permissions.
CBP is working with NARA to develop the appropriate retention schedule based on the information below. For persons CBP determines to be U.S. citizens and LPRs, information in BCI that is related to a particular border crossing is maintained for 15 years from the date when the traveler entered, was admitted to or paroled into, or departed the United States, at which time it is deleted from BCI. For non-immigrant aliens, the information will be maintained for 75 years from the date of admission or parole into or departure from the United States in order to ensure that the information related to a particular border crossing is available for providing any applicable benefits related to immigration or for other law enforcement purposes.
Information related to border crossings prior to a change in status will follow the 75 year retention period for non-immigrant aliens who become U.S. citizens or LPRs following a border crossing that leads to the creation of a record in BCI. All information regarding border crossing by such persons following their change in status will follow the 15 year retention period applicable to U.S. citizens and LPRs. For all travelers, however, BCI records linked to active law enforcement lookout records, DHS/CBP matches to enforcement activities, or investigations or cases remain accessible for the life of the primary records of the law
Director, Office of Automated Systems, U.S. Customs and Border Protection Headquarters, 1300 Pennsylvania Avenue NW., Washington, DC 20229.
DHS allows persons (including foreign nationals) to seek administrative access under the Privacy Act to information maintained in BCI. However, the Secretary of DHS exempted portions of this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. Nonetheless, DHS/CBP will consider individual requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the DHS Chief Freedom of Information Act (FOIA) Officer or CBP FOIA Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. Although no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer,
• Explain why you believe the Department would have information on you;
• Identify which Component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS Component agency may have responsive records
If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.
Without the above information, CBP may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
BCI receives information from individuals who arrive in, depart from, or transit through the United States. This system also collects information from carriers that operate vessels, vehicles, aircraft, or trains that enter or exit the United States, including private aircraft operators. Lastly, BCI receives border crossing information received from CBSA.
No exemption shall be asserted with respect to information maintained in the system that is
The Privacy Act, however, requires DHS to maintain an accounting of the disclosures made pursuant to all routines uses. Disclosing the fact that a law enforcement or intelligence agency has sought particular records may affect ongoing law enforcement activities. The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), exempted this system from the following provisions of the Privacy Act: Sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS has exempted section (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect this information.
Additionally, this system contains records or information recompiled from or created from information contained in other systems of records that are exempt from certain provision of the Privacy Act. This system also contains accountings of disclosures made with respect to information maintained in the system. For these records or information only, in accordance with 5 U.S.C. 552a(j)(2) and (k)(2), DHS will also claim the original exemptions for these records or information from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f); and (g) of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice advises Community Development Block Grant disaster recovery (CDBG–DR) grantees with grants pursuant to the Disaster Relief Appropriations Act, 2013 (the Appropriations Act) of the process and requirements associated with grantee requests for an extension of the 24-month expenditure deadline for specific portions of funds obligated under the Appropriations Act.
Stanley Gimont, Director, Office of Block Grant Assistance, Department of Housing and Urban Development, 451 7th Street SW., Room 7286, Washington, DC 20410, telephone number 202–708–3587. Persons with hearing or speech impairments may access this number via TTY by calling the Federal Relay Service at 800–877–8339. Facsimile inquiries may be sent to Mr. Gimont at 202–401–2044. (Except for the “800” number, these telephone numbers are not toll-free.) Email inquiries may be sent to
The requirements of this Notice are applicable to all CDBG disaster recovery (CDBG–DR) grants funded pursuant to the Disaster Relief Appropriations Act, 2013 (Pub. L. 113–2, approved January 29, 2013) and do not apply to any CDBG–DR grants funded pursuant to other supplemental appropriations.
The Appropriations Act made available $16 billion in CDBG–DR funds for necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure and housing, and economic revitalization in the most impacted and distressed areas resulting from a major disaster declared pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1974 (42 U.S.C. 5121
This Notice establishes submission instructions for expenditure deadline extension requests and other related requirements for grantees in receipt of allocations under the Appropriations Act, which are described within the
The Appropriations Act requires HUD to obligate all funds provided under the Appropriations Act by September 30, 2017. The Appropriations Act also requires that grantees expend funds within 24 months of the date on which HUD obligates funds to a grantee. Funds are obligated to a grantee on the date that HUD signs a grantee's CDBG- DR grant agreement or grant agreement amendment obligating additional funds. Each obligation carries its own expenditure deadline. For each obligation to a grantee, any funds remaining in the grantee's line of credit from that obligation at the time of the expenditure deadline for that obligation will be returned to the U.S. Treasury, or if before September 30, 2017, will be recaptured by HUD. In all instances, grantees must continue to meet the requirements for Federal cash management at 24 CFR 85.20(a)(7), as may be amended, and therefore may not draw down funds in advance of need to attempt to comply with the expenditure deadline in accordance with HUD's long-standing implementation of this requirement.
Section 904(c) of the Appropriations Act authorizes the Office of Management and Budget (OMB) to grant waivers of the 24-month expenditure deadline. To implement this provision of the Appropriations Act, OMB requested Federal agencies receiving an appropriation under the Appropriations Act to identify categories of activities that could be subject to a waiver of the 24-month expenditure deadline. OMB also requested that agencies estimate, for each category of activity, the total amount of funds provided under the Appropriations Act that would likely require a waiver. HUD submitted an analysis of different categories of CDBG–DR activities that would likely necessitate a waiver of the expenditure deadline to OMB. OMB authorized HUD to provide CDBG–DR grantees with expenditure deadline extensions for activities that are inherently long-term and where it would be impracticable to expend funds within the 24-month period and still achieve program missions.
Although HUD has authority to grant extensions of the 24-month expenditure deadline up to amounts approved by OMB for each of the activity categories described in Section III of this Notice, grantees are advised that 31 U.S.C. 1552(a) continues to apply to funds appropriated under the Appropriations Act. Specifically, CDBG–DR funds are to remain available for expenditure for five years following the period of availability for obligation. All funds under the Appropriations Act, including those subject to a waiver of the expenditure deadline, must be expended by September 30, 2022. Any grant funds that have not been disbursed by September 30, 2022, will be canceled and will no longer be available for disbursement to the grantee for obligation or expenditure for any purpose.
The National Disaster Recovery Framework acknowledges that long-term recovery is inherently a multi-year process. HUD recognizes that grantees allocate a significant portion of CDBG–DR funds to complex and large-scale programs and projects that are long-term in nature. HUD also recognizes that grantees will require CDBG–DR administrative funds to conduct grant closeout and engage in ongoing program oversight, and that these efforts will inevitably extend beyond the 24-month expenditure deadline that applies to each obligation.
As authorized by OMB, HUD will limit its consideration of expenditure deadline extension requests to certain types of eligible disaster recovery activities undertaken by grantees. HUD will consider grantee programs and projects within the following four categories for expenditure deadline extensions:
•
•
•
•
The process for any funds that the grantee believes will not be expended by the 24-month expenditure deadline, as outlined in Section III of each of the prior
“The Appropriations Act requires that funds be expended within two years of the date HUD obligates funds to a grantee; and funds are obligated to a grantee upon HUD's signing of a grantee's CDBG–DR grant agreement. In its Action Plan, a grantee must demonstrate how funds will be fully expended within two years of obligation and HUD must obligate all funds not later than September 30, 2017. For any funds that the grantee believes will not be expended by the 24-month deadline and that it desires to retain, the grantee must submit an extension request in a form acceptable to HUD not less than 120 calendar days in advance of the date of the expenditure deadline on those funds justifying why it is necessary to extend the deadline for a specific portion of the funds. In consideration of the timeline for funds with expenditure deadlines in 2015, extension requests for those funds must be submitted to HUD not less than 60 calendar days in advance of the date of the expenditure deadline on those funds. OMB has provided HUD with authority to act on grantee extension requests but grantees are cautioned that such extensions may not be approved. If granted, extensions will be published in the
Grantees seeking an extension of the 24-month deadline for a project or program must provide HUD with detailed information on the compelling legal, policy, or operational challenges that prevent the grantee from meeting the expenditure deadline as well as identify the proposed date for the full expenditure of the specified portion of funds.
To expedite the review process, HUD has developed a CDBG–DR Expenditure Deadline Extension Request template. Grantees must submit one template per program or project for which a revised expenditure deadline is being requested. In certain cases, HUD may request that a grantee resubmit this template at a project-level if information provided at the programmatic level is insufficient for HUD to assess whether the request meets HUD's criteria for approving an extension, as outlined in Section VII below. This template will ensure that each request captures all of the requirements outlined in this Notice. The template will be posted at:
(1) A description of the individual program or project for which an extension is being requested, including information on relevant Disaster Recovery Grant Reporting System (DRGR) activity(ies).
(2) An explanation for why an extension is being requested, including all relevant and compelling statutory, regulatory, policy, or operational challenges, and how the extension will promote a more effective and efficient recovery effort.
(3) Description of how the provision of an extension would reduce the likelihood of waste, fraud, and abuse, if applicable.
(4) An identification of all community stakeholders (including state or local entities, subrecipients, nonprofits, and civic organizations) to be affected by the expenditure deadline extension, their role in program or project implementation, and the impact, if any, of the extension on these stakeholders.
(5) A revised expenditure deadline for the CDBG–DR funds budgeted for the program or project (
(6) A description of the risks associated with not receiving the requested extension, such as the estimated percentage of funds which would be at risk of recapture or specific recovery needs that would not be met if the particular program or project cannot be completed or undertaken.
(7) A description of the monitoring process and internal controls that the grantee and any subrecipients will implement to ensure compliance with the revised expenditure deadline.
The submission of any grantee expenditure deadline extension request is subject to the following requirements:
• Grantee submits the completed CDBG–DR Expenditure Deadline Extension Request template and any attachments to HUD in order to request consideration of the extension request not less than 120 calendar days in advance of the expenditure deadline on the funds (or 60 days for funds expiring in calendar year 2015).
• HUD reviews the extension request within 45 (or sooner for funds expiring in calendar year 2015) calendar days from date of receipt and approves the request based on the parameters outlined in Section VII of this Notice.
• HUD sends an extension request approval letter to the grantee. HUD may disapprove the request if it is determined that it does not meet the requirements of this Notice. If the request is not approved, a letter will be sent identifying its deficiencies; the grantee must then re-submit the request within 30 calendar days (or 10 days for funds expiring in the calendar year 2015) of the notification letter;
• Within 30 calendar days of HUD's approval, the grantee amends its Action Plan for disaster recovery to reflect the approval of the revised expenditure deadline. HUD considers any Action Plan amendments to reflect revised activity expenditure timelines to be non-substantial amendments.
• Immediately following this amendment, the grantee updates its DRGR Action Plan to reflect the revised `end date' for each DRGR activity covered by the approved waiver.
• If approved, HUD will publish the extension approval in the
Under the authority provided to HUD by OMB, HUD will consider expenditure deadline extension requests for projects or programs based on the Secretary's determination that the extension is necessary and that the request meets the conditions set forth by OMB. HUD will assess extension requests using the following criteria:
(1) The program or project must be approved in the grantee's Action Plan
(2) The CDBG–DR funds associated with the program or project must have been obligated by HUD through a grant agreement, and, therefore, be subject to an established expenditure deadline.
(3) The information submitted on the CDBG–DR Expenditure Deadline Extension Request template is comprehensive and complete to the satisfaction of HUD, as outlined in Section V of this Notice.
(4) The revised expenditure deadline for the CDBG–DR funds budgeted for the program or project (
(5) The grantee's capacity to implement monitoring processes and internal controls as outlined by the grantee in the template are sufficient to ensure compliance with the revised expenditure deadline.
(6) The grantee has demonstrated that it has evaluated all reasonable alternatives prior to determining that an extension is the only remaining viable alternative.
(7) HUD can determine, based on the grantee's submission, that the program or project covered by the request satisfies the OMB criteria for activities that are long-term by design, where it is impracticable to expend funds within the 24-month period and achieve program missions, and any other criteria imposed by OMB.
Regardless of the criteria outlined in this section, HUD retains the authority to deny requested extensions or to provide alternative expenditure deadlines to those proposed by grantees.
This section of the Notice describes other requirements that grantees should consider prior to requesting an extension of the of the 24-month expenditure deadline for CDBG–DR programs and projects.
1.
2.
3.
The Catalog of Federal Domestic Assistance number for the disaster recovery grants under this Notice is as follows: 14.269.
A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410–0500. Due to security measures at the HUD Headquarters building, an advance appointment to review the docket file must be scheduled by calling the Regulations Division at 202–708–3055 (this is not a toll-free number). Hearing or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339.
Office of the Deputy Secretary, U.S. Department of Housing and Urban Development (HUD).
Notice of delegation of authority.
In this notice, the Deputy Secretary delegates to the Chief Operations Officer all management and supervisory authority for the following offices: The Chief Information Officer (CIO); the Chief Human Capital Officer (CHCO); the Chief Procurement Officer (CPO); and the Chief Administrative Officer (CAO).
Effective upon date of signature.
John B. Shumway, Assistant General Counsel for Administrative Law, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 9262, Washington, DC 20410–0500, telephone number 202–402–5190. (This is not a toll-free number.) Individuals with speech or hearing impairments may access this number through TTY by calling 1–800–877–8339.
Certain management and program functions will now be performed by a Chief Operations Officer (COO). These functions include executive scheduling, security and emergency planning, executive secretariat, Freedom of Information Act processing, budgeting, accounting, hiring and training employees, modernizing information technology systems, information security, protecting privacy, procurement and contracting, and disaster preparedness operations. These functions are performed in the offices of the Chief Human Capital Officer (CHCO), the Chief Information Officer (CIO), the Chief Procurement Officer (CPO), and the Chief Administrative Officer (CAO). The COO has been delegated management and program authority for these offices.
The Deputy Secretary of Housing and Urban Development hereby delegates to the Chief Operations Officer the authority to manage and supervise the following offices and functions:
The authority delegated in this document does not include the authority to sue or be sued or to issue or waive regulations.
The Chief Operations Officer may redelegate to employees of HUD any of the authority delegated under Section A above.
This delegation revokes all previous delegations of authority from the Secretary or the Deputy Secretary to the Assistant Secretary for Administration or the Chief Operations Officer, including the Delegation of Authority to the Chief Operating Officer published in the
This delegation is effective immediately and until such time as this delegation is revoked. The Deputy Secretary may revoke the authority authorized herein, in whole or part, at any time.
Section 7(d) of the Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on September 30, 2015. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
To ensure that we are able to consider your comments on this IC, we must receive them by July 10, 2015.
Send your comments on this IC to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803 (mail); or
To request additional information about this IC, contact Hope Grey at
The Wildlife and Sport Fish Restoration Program (WSFR), U.S. Fish and Wildlife Service, administers the following financial assistance programs in whole or in part. We award most financial assistance as grants, but cooperative agreements are possible if the Federal Government will be substantially involved in carrying out the project. You can find a description of most programs in the Catalog of Federal Domestic Assistance (CFDA).
Authorities and implementing regulations establish the purposes of the grant programs and the types of projects to be funded. Some list eligibility criteria as well as activities ineligible for funding. The authorities and implementing regulations for the competitive programs establish preferences or ranking factors for the selection of projects to be funded. These legal requirements make it essential for an awarding agency to have certain information so that it funds only eligible projects, and, in the case of competitive programs, to select those projects that will result in the greatest return on the Federal investment.
Some grants are mandatory and receive funds according to a formula set by law or policy. Other grants are discretionary, and we award them based on a competitive process. Mandatory grant recipients must give us specific, detailed project information during the application process so that we can ensure that projects are eligible for the mandatory funding, are substantial in character and design, and comply with all applicable Federal laws. All grantees must submit financial and performance reports that contain information necessary for us to track costs and accomplishments.
In February 2014, OMB approved our request to use a new electronic system (Wildlife Tracking and Reporting Actions for the Conservation of Species (Wildlife TRACS)) to collect application and performance reporting information on our grant programs. OMB assigned OMB Control No. 1018–0156, which expires February 28, 2017. Wildlife TRACS allows us to take advantage of newer technology and gives applicants direct access to enter project information that can be used to submit an application through
To apply for financial assistance funds, you must submit an application that describes in substantial detail project locations, benefits, funding, and other characteristics. Materials to assist applicants in formulating project proposals are available on Grants.gov. We use the application to determine:
• Eligibility.
• Scale of resource values or relative worth of the project.
• If associated costs are reasonable and allowable.
• Potential effect of the project on environmental and cultural resources.
• How well the proposed project will meet the purposes of the program's establishing legislation.
• If the proposed project is substantial in character and design.
• For competitive programs, how the proposed project addresses ranking criteria.
Persons or entities receiving grants must submit periodic performance reports that contain information necessary for us to track costs and accomplishments.
In addition to the information currently collected under OMB Control No. 1018–0109, we will collect the following additional information currently approved under OMB Control No. 1018–0156:
For mandatory grant program applications and amendments:
• Geospatial entry of project location.
• Project status (active, completed, etc.).
• Project leader contact information.
• Partner information.
• Objectives, including output measures and desired future values.
• Plan information (for projects connected to plans).
For all WSFR grant program projects and reports:
• The information above, as applicable to the approved grant.
• Public description.
• Action status (active, completed, etc.).
• Summary trend information, as applicable.
• Estimated costs, by action. (non-auditable).
• Effectiveness measures (initially for State Wildlife Grants).
For real property acquisition projects, information related to:
• Transactions, such as dates, method of transfer, title holder, and seller.
• Identifiers, such as State and Federal Record ID, parcel number, and property name.
• Values such as appraised value, purchase price and other cost information, and acres or acre feet.
• Encumbrances.
• Partners.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. 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.
Fish and Wildlife Service, Interior.
Notice.
To implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES or the Convention), the Parties to the Convention meet periodically to review what species in international trade should be regulated and other aspects of the implementation of CITES. The seventeenth regular meeting of the Conference of the Parties to CITES (CoP17) is tentatively scheduled to be held in September 2016 in South Africa. With this notice we are soliciting and invite you to provide us with information and recommendations on resolutions, decisions, and agenda items that the United States might consider submitting for discussion at CoP17. In addition, with this notice we provide preliminary information on how to request approved observer status for nongovernmental organizations that wish to attend the meeting.
We will consider all information and comments we receive on or before July 10, 2015.
You may submit comments pertaining to recommendations for resolutions, decisions, and agenda items for discussion at CoP17 by one of the following methods:
•
•
We will not consider comments sent by email or fax, or to an address not listed in the
For information pertaining to resolutions, decisions, and agenda items, contact Craig Hoover, Chief, Wildlife Trade and Conservation Branch, Division of Management Authority, at 703–358–2095 (phone), 703–358–2298 (fax), or
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, hereinafter referred to as CITES or the Convention, is an international treaty designed to regulate international trade in certain animal and plant species that are now, or potentially may become, threatened with extinction. These species are listed in the Appendices to CITES, which are available on the CITES Secretariat's Web site at
Currently, 180 countries, including the United States, are Parties to CITES. The Convention calls for regular biennial meetings of the Conference of the Parties, unless the Conference decides otherwise. At these meetings, the Parties review the implementation of CITES, make provisions enabling the CITES Secretariat in Switzerland to carry out its functions, consider amendments to the list of species in Appendices I and II, consider reports presented by the Secretariat, and make recommendations for the improved effectiveness of CITES. Any country that is a Party to CITES may propose amendments to Appendices I and II, resolutions, decisions, and agenda items for consideration by all the Parties at the meeting.
This is our second in a series of
Although we have not yet received formal notice of the provisional agenda for CoP17, we invite your input on possible agenda items that the United States could recommend for inclusion, or on possible resolutions and decisions of the Conference of the Parties that the United States could submit for consideration. Copies of the agenda and the results of the last meeting of the Conference of the Parties (CoP16) in Bangkok, Thailand, in March 2013, as well as copies of all resolutions and decisions of the Conference of the Parties currently in effect, are available on the CITES Secretariat's Web site (
Article XI, paragraph 7 of CITES provides: “Any body or agency technically qualified in protection, conservation or management of wild fauna and flora, in the following categories, which has informed the Secretariat of its desire to be represented at meetings of the Conference by observers, shall be admitted unless at least one-third of the Parties present object:
(a) international agencies or bodies, either governmental or nongovernmental, and national governmental agencies and bodies; and
(b) national nongovernmental agencies or bodies which have been approved for this purpose by the State in which they are located.
Once admitted, these observers shall have the right to participate but not to vote.”
National agencies or organizations within the United States must obtain our approval to participate in CoP17, whereas international agencies or organizations must obtain approval directly from the CITES Secretariat. We will publish information in a future
As stated above, the next regular meeting of the Conference of the Parties (CoP17) is tentatively scheduled to be held in South Africa in September 2016. The United States must submit any proposals to amend Appendix I or II, or any draft resolutions, decisions, or agenda items for discussion at CoP17, to the CITES Secretariat no later than 150 days (tentatively April 2016) prior to the start of the meeting. In order to meet this deadline and to prepare for CoP17, we have developed a tentative U.S. schedule. Approximately 14 months prior to CoP17, we plan to publish our next CoP17-related
Through a series of additional notices and Web site postings in advance of CoP17, we will inform you about preliminary negotiating positions on resolutions, decisions, and amendments to the Appendices proposed by other Parties for consideration at CoP17, and about how to obtain observer status from us. We will also publish an announcement of a public meeting tentatively to be held approximately 3 months prior to CoP17. That meeting will enable us to receive public input on our positions regarding CoP17 issues. The procedures for developing U.S. documents and negotiating positions for a meeting of the Conference of the Parties to CITES are outlined in 50 CFR 23.87. As noted in paragraph (c) of that section, we may modify or suspend the procedures outlined there if they would interfere with the timely or appropriate development of documents for submission to the CoP and of U.S. negotiating positions.
The primary author of this notice is Mark Albert, Division of Management Authority, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice.
In accordance with Federal coal management regulations, the Buckingham Coal Company, Federal Coal Lease by Application (LBA) Environmental Assessment (EA) is available for public review and comment. A public hearing will be held to receive comments on the EA and associated Finding of No Significant Impact (FONSI), Fair Market Value (FMV), and Maximum Economic Recovery (MER) of the coal resources for Buckingham Coal Company LBA OHES–57390.
The public hearing will be held at 7 p.m. on June 4, 2015. Written comments must be received within 30 days following the date of the public hearing.
The public hearing will be held at the Trimble High School Cafeteria, One Tomcat Drive, Glouster, Ohio 45832. Written comments on the FMV and MER should be addressed to Michael W. Glasson, BLM Eastern States, Division of Lands and Minerals, Mail Stop 9242, 20 M Street SE., Suite 950, Washington, DC 20003. Comments on the EA and FONSI should be sent to Dean Gettinger, Field Office Manager, Northeastern States Field Office, 626 E. Wisconsin Avenue, Suite 200, Milwaukee, WI 53202–4617. Comments may also be emailed to
Michael W. Glasson, Solid Minerals Program Lead, telephone: 202–912–7723; or email:
The Buckingham Coal Company filed an LBA with the BLM in December of 2011, to lease Federal coal in Perry and Morgan Counties, Ohio. The U.S. Forest Service (FS) completed an EA and FONSI on March 11, 2014 and issued its consent to lease on March 11, 2014. The BLM anticipates issuing a Decision Record after the public meeting announced by this Notice and after having considered any comments received on the EA, FMV, and MER.
The lands included in the Buckingham Coal Company Federal Coal LBA OHES–57390 are located in Perry and Morgan Counties, Ohio, approximately 2–4 miles east of Corning, Ohio. The lands are described as follows:
Containing 6.00 acres.
Containing 10.00 acres.
Containing 80.00 acres.
Containing 109.25 acres.
Containing 80.00 acres.
Containing 60.94 acres (A subsurface ownership difference will be resolved on this parcel prior to lease issuance).
Containing 86.25 acres.
Containing 432.44 acres.
The company plans to mine the Federal coal as an extension from its existing underground mine if the lease is obtained. The proposed mine would recover coal from the Middle Kittanning seam at the base of the Pennsylvanian aged Lower Freeport Sandstone. As required under 43 CFR 3425.4, the public is invited to the hearing to give public oral and/or written comments on the EA, the FMV, and MER of the Federal tract. Written comments must be received within 30 days following the date of the public hearing. The meeting is being advertised in the
The EA addresses the cultural, socioeconomic, environmental and cumulative impacts that would likely result from leasing these coal lands. Two alternatives are addressed in the EA:
Alternative 1 (Proposed Action) The tract would be leased, as applied for.
Alternative 2 (No Action) The application would be rejected or denied. The Federal coal would therefore be bypassed.
Proprietary data marked as confidential may be submitted to the BLM in response to the solicitation of public comments. Data so marked shall be treated in accordance with the laws and the regulations governing the confidentiality of such information. A copy of the comments submitted by the public on FMV and MER, except those portions identified as proprietary by the author and meeting exemptions stated in the Freedom of Information Act, will be available for public inspection at the Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003, 9th Floor, during regular business hours (9 a.m. to 4 p.m.), Monday through Friday. Written comments on the FMV and MER should address, but need not be limited to the following:
1. The quality and quantity of the coal resource;
2. The mining methods or methods which would achieve MER of the coal, including specifications of seams to be mined and the most desirable timing and rate of production;
3. Restrictions to mining that may affect coal recovery;
4. The price that the mined coal would bring when sold;
5. Costs, including mining and reclamation, of producing the coal and the time of production;
6. The percentage rate at which anticipated income streams should be discounted, either with inflation or in the absence of inflation, in which case the anticipated rate of inflation should be given;
7. Depreciation, depletion, amortization and other tax accounting factors;
8. The value of any surface estate where held privately;
9. Documented information on the terms and conditions of recent and similar coal land transactions in the lease sale area; and
10. Any comparable sales data of similar coal lands and coal quantities.
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.
40 CFR 1506.6; 43 CFR 3425.4.
Bureau of Land Management, Interior
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act, the Bureau of Land Management's (BLM) San Juan Islands National Monument Advisory Committee (MAC) will meet as indicated below.
The MAC will meet on three separate dates in the next two months. The meetings on May 28 and June 5 are scheduled for 8:30 a.m.–4:45 p.m. at the San Juan Island Grange, 152 N 1st Street, Friday Harbor, Washington 98250. The meeting on June 9 is scheduled for 9:30 a.m.–4:45 p.m. at Brickworks, 150 Nichols St., Friday Harbor, Washington 98250.
Thursday, May 28, 2015: Meeting discussions will include an update on outcomes of the scoping process in March 2015. The MAC will be guided through the planning process steps, with definitions of key steps, such as Issues Identification. The committee will then review the variety of resource comments as well as the list of preliminary planning issues developed by the BLM interdisciplinary team. The committee will provide recommendations on any modifications to this list that they may have. The planning issues are the questions (
Friday, June 5, 2015: This meeting will focus on the ecological values within the National Monument for which the BLM will be developing alternative management approaches through the planning process. BLM resource leads for wildlife, botany, and invasive species will be present to share the breadth of considerations and opportunities that will be considered in the generation of alternatives.
Tuesday, June 9, 2015: This meeting will focus on cultural and historic values within the National Monument for which the BLM will be developing alternative management approaches through the planning process. The BLM resource lead for cultural and heritage resources will be present to introduce the MAC to the requirements for considerations and analysis in the generation of alternatives.
Marcia deChadenèdes, San Juan Islands National Monument Manager, P.O. Box 3, 37 Washburn Ave., Lopez Island, Washington 98261, (360) 468–3051, or
The twelve member San Juan Islands MAC was chartered to provide information and advice regarding the development of the San Juan Islands National Monument's RMP. Members represent an array of stakeholder interests in the land and resources from within the local area and statewide. All advisory committee meetings are open to the public. At each meeting, at 3:45 p.m., members of the public will have the opportunity to make comments to the MAC during a one-hour public comment period. Persons wishing to make comments during the public comment period should register in person with the BLM by 3 p.m. on that meeting day, at the meeting location. Depending on the number of persons wishing to comment, the length of comments may be limited. The public may send written comments to the MAC at San Juan Islands National Monument, Attn. MAC, P.O. Box 3, 37 Washburn Ave., Lopez Island, Washington 98261. The BLM appreciates all comments.
United States International Trade Commission.
May 21, 2015 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205–2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701–TA–456 and 731–TA–1151–1152 (Review) (Citric Acid and Certain Citrate Salts from Canada and China). The Commission is currently scheduled to complete and file its determinations and views of the Commission on June 3, 2015.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission:
On May 1, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District
The Consent Decree addresses alleged violations of the Clean Air Act, 42 U.S.C. 7401,
The proposed Consent Decree would resolve the claims alleged in the United States' Complaint in exchange for the Defendant's commitment to implement appropriate injunctive relief and pay a civil penalty of $850,000. Among other things, the injunctive relief provisions of the Consent Decree would require Merit to implement an enhanced leak detection and repair program at its Kalkaska, Michigan natural gas processing plant.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $17.50 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Annual Information Return/Report of Employee Benefit Plan,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before June 10, 2015.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Annual Return/Report of Employee Benefit Plan information collection. The Annual Return/Report of Employee Benefit Plan, Form 5500, is the primary source of information concerning the operation, funding, assets, and investments of pension and other employee benefit plans. In addition to being an important disclosure document for plan participants and beneficiaries, Form 5500 is a compliance and research tool for the EBSA, Pension Benefit Guaranty Corporation, and Internal Revenue Service. It is also a source of information for use by other Federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies. Employee Retirement Income Security Act of 1974 section 103 authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A). This program helps to assure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the proposed extension of the information collection requests (ICRs) contained in the documents described below. A copy of the ICRs may be obtained by contacting the office listed in the
All comments must be received on or before July 10, 2015.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.
•
•
•
Sheila McConnell, Acting Director, Office of Standards, Regulations, and Variances, MSHA, at
MSHA is soliciting comments concerning the proposed extension of the information collection requests contained in this notice. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
This information collection request is available on
The public may also examine publicly available documents at MSHA, 1100 Wilson Boulevard, Room 2350, Arlington, VA. Sign in at the receptionist's desk on the 21st floor.
Questions about the information collection requirements may be directed to the person listed in the
This request for collection of information contains provisions for the proposed extension of the information collection requests contained in this notice. MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Mine maps are schematic depictions of critical mine infrastructure, such as water, power, transportation, ventilation, and communication systems. Using accurate, up-to-date maps during a disaster, mine emergency personnel can locate refuges for miners and identify sites of explosion potential; they can know where stationary equipment was placed, where ground was secured, and where they can best begin a rescue operation. During a disaster, maps can be crucial to the safety of the emergency personnel who must enter a mine to begin a search for survivors.
Mine maps may describe the current status of an operating mine or provide crucial information about a long-closed mine that is being reopened.
Title 30 CFR 75.1200 requires each underground coal mine operator to have an accurate and up-to-date map of such mine drawn to scale and stored in a fireproof repository in an area on the surface of the mine chosen by the mine operator to minimize the danger of destruction by fire or other hazards. Sections 75.1200–1, 75.1201, 75.1202, 75.1202–1, and 75.1203 specify the information which must be shown on the map. The maps must be certified by a registered engineer or surveyor; kept continuously up-to-date by temporary notations and revised and supplemented to include the temporary notations at intervals not more than 6 months; and made available for inspection by a representative of the Secretary, State coal mine inspectors, miners and their representatives, operators of adjacent coal mines, and persons owning, leasing, or residing on surface areas of such mines or areas adjacent to such mines. These maps are essential to the planning and safe operation of the mine. In addition, these maps provide a graphic presentation of the locations of working sections and the locations of fixed surface and underground mine facilities and equipment, escapeway routes, coal haulage and man and materials haulage entries and other information essential to mine rescue or mine fire fighting activities in the event of mine fire, explosion or inundations of gas or water. The information is essential to the safe operation of adjacent mines and mines approaching the worked out areas of active or abandoned mines. Section 75.372 requires underground mine operators to submit three copies of an up-to-date mine map to the District Manager at intervals not exceeding 12 months during the operating life of the mine.
Title 30 CFR 75.1204 and 75.1204–1 require that whenever an underground coal mine operator permanently closes or abandons a coal mine, or temporarily closes a coal mine for a period of more than 90 days, the operator shall file with MSHA a copy of the mine map revised and supplemented to the date of closure. Maps are retained in a repository and are made available to mine operators of adjacent properties. The maps are necessary to provide an accurate record of underground areas that have been mined to help prevent active mine operators from mining into abandoned areas that may contain water or harmful gases.
Title 30 CFR 77.1200, 77.1201 and 77.1202 require surface coal mine operators to maintain an accurate and up-to-date map of the mine and specifies the information to be shown on the map, the acceptable range of map scales, that the map be certified by a registered engineer or surveyor, that the map be available for inspection by the Secretary or his authorized representative. These maps are essential for the safe operation of the mine and provide essential information to operators of adjacent surface and underground mines. Properly prepared and effectively utilized surface mine maps can prevent outbursts of water impounded in underground mine workings and/or inundations of underground mines by surface impounded water or water and or gases impounded in surface auger mining worked out areas.
Title 30 CFR 75.373 and 75.1721 require that after a mine is abandoned or declared inactive and before it is reopened, mine operations shall not begin until MSHA has been notified and has completed an inspection. Section 75.1721 specifies that once the mine operator notifies the MSHA District Manager on the intent to reopen a mine all preliminary plans must be submitted in writing prior to development of the coalbed unless or until all preliminary plans are approved.
Information collection requirements are found in: section 75.1901(a) Diesel fuel requirements; section 75.1911(j) Fire suppression systems for diesel-
For many years, NIHL was regarded as an inevitable consequence of working in a mine. Mining, an intensely mechanized industry, relies on drills, crushers, compressors, conveyors, trucks, loaders, and other heavy-duty equipment for the excavation, haulage, and processing of material. This equipment creates high sound levels, exposing machine operators as well as miners working nearby. MSHA, Occupational Safety and Health Administration, the military, and other organizations around the world have established and enforced standards to reduce the loss of hearing. Quieter equipment, isolation of workers from noise sources, and limiting the time workers are exposed to noise are among the many well-accepted methods that will prevent the costly incidence of NIHL.
Records of miner exposures to noise are necessary so that mine operators and MSHA can evaluate the need for and effectiveness of engineering controls, administrative controls, and personal protective equipment to protect miners from harmful levels of noise that can result in hearing loss. However, the Agency believes that extensive records for this purpose are not needed. These requirements are a performance-oriented approach to monitoring. Records of miner hearing examinations enable mine operators and MSHA to ensure that the controls are effective in preventing NIHL for individual miners. Records of training are needed to confirm that miners receive the information they need to become active participants in hearing conservation efforts.
MSHA's health and safety training requirements ensure that all miners receive the required training, which would result in a decrease in accidents, injuries, and fatalities. The information obtained from mine operators is used by MSHA during inspections to determine compliance with the requirements concerning the training and retraining of miners engaged in shell dredging, or employed at sand, gravel, surface stone, surface clay, colloidal phosphate, and surface limestone mines.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning its proposal to extend OMB approval of the information collection: Statement of Recovery (SOR) Forms (CA–1108 and CA–1122). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before July 10, 2015.
Ms. Yoon Ferguson, U.S. Department of Labor, 200 Constitution Ave. NW., Room S–3201, Washington, DC 20210, telephone/fax (202) 354–9647, Email
I.
When the employee receives a payment for his or her damages, whether from a final court judgment on or a settlement of the action, section
The information collected by Form CA–1108 and Form CA–1122 from the FECA beneficiary includes this information and is necessary to calculate the amount of the refund and surplus owed to the United States from the FECA beneficiary's settlement or judgment, as required in the statute and the regulations. This information collection is currently approved for use through August 31, 2015.
II.
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
III.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Capital Planning Commission.
Notice of 60-day public comment period.
The National Capital Planning Commission (NCPC), the Planning Commission for the Federal Government within the National Capital Region, intends to release for public comment a draft new Federal Urban Design Element of the Comprehensive Plan for the National Capital: Federal Elements. The Comprehensive Plan for the National Capital: Federal Elements addresses matters relating to Federal Properties and Federal Interests in the National Capital Region, and provides a decision-making framework for actions the NCPC takes on specific plans and proposals submitted by Federal government agencies for the NCPC review required by law. The new Federal Urban Design Element provides policies that will guide the design and management of federal buildings and properties so as to enhance their adjacent public realm. It will also provide a framework for federal actions related to enhancing the overall character of the District of Columbia and the National Capital Region. All interested parties are invited to submit written comment. The draft Federal Urban Design Element will be available online at
Mail written comments or hand deliver comments on the draft revisions to Comprehensive Plan Public Comment, National Capital Planning Commission, 401 9th Street NW., Suite 500, Washington, DC 20004. The public meeting will be held at AIA∣DC 421 7th Street NW., Washington, DC 20004.
Dereth Bush at (202) 482–7233 or
You may submit comments electronically at the public comment portal at
(40 U.S.C. 8721(e)(2)).
National Science Foundation.
Notice and request for comments.
The National Science Foundation (NSF) is announcing plans to request approval of this collection. In accordance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting OMB clearance of this collection for no longer than 3 years.
Interested persons are invited to send comments regarding the burden or any other aspect of this collection of information requirements by July 10, 2015.
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, or by email to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, Virginia 22230; telephone (703) 292–7556; or send email to
NSF granted STEP awards to a geographically diverse set of two- and four-year IHEs, with the first round of grant awards beginning in the 2002–2003 school year and new awards granted each year through the 2013–2014 school year. Over the course of the program, STEP awarded a total of 255 grants (129 of which are currently active). STEP supported 3 types of grants:
Type 1—Type 1 grants supported the implementation of best practices in recruitment, retention, and degree attainment that would lead to an increase in the number of students obtaining associate or baccalaureate degrees in STEM or completing credits to transfer from associate to baccalaureate programs in a STEM discipline. Specific strategies implemented were based on an analysis of the needs of the undergraduate institution of higher education (IHE).
Type 2—Type 2 grants supported educational research projects that helped identify best practices and further understanding of the factors influencing STEM recruitment, retention, and degree attainment.
Graduate 10K+—In support of President Obama's 2012 initiative calling for “one million STEM graduates in ten years,” a public-private collaboration among NSF, Intel, and the GE Foundation, with a generous personal donation from Mark Gallogly, established the Graduate 10K+ special funding focus in FY2013. Graduate 10K+ projects strived to improve first and second year retention rates in engineering and computer science, especially among women and other groups of students who are underrepresented in the attainment of degrees in those disciplines.
NSF is committed to providing stakeholders with information regarding the expenditures of taxpayer funds. The evaluation of STEP will assess the overall effect of STEP funding across STEP-funded IHEs; explore the types and combinations of STEP strategies, practices, and characteristics that are most effective at achieving the desired STEP outcomes; examine differences in outcomes across targeted disciplines; assess the effects of Graduate 10K+ funding on first- and second-year retention rates in engineering and computer science; and investigate the broad influence of STEP Type 2 projects to the base of quality, practical research in STEM education and in preparing new researchers to enter the field.
If NSF cannot collect information from STEP participants and comparison IHEs, NSF will have no other means to consistently assess the program outcomes and identify strategies, practices, and characteristics that are most effective at achieving those desired outcomes.
The evaluation will involve data from web surveys and extant sources. OMB approval is being sought for the new data that will be collected for the study. Primary data sources will include web surveys of STEP Principal Investigators (PIs) and aggregate level outcome data provided by PIs at grantee IHEs and Institutional Research staff at comparison IHEs.
2:00 p.m., Tuesday, May 19, 2015.
NeighborWorks America—Gramlich Boardroom 999 North Capitol Street NE., Washington, DC 20002.
Open (with the exception of Executive Sessions).
Jeffrey Bryson, General Counsel/Secretary (202) 760–4101;
May 11, 18, 25, June 1, 8, 15, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of May 11, 2015.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of May 25, 2015.
There are no meetings scheduled for the week of June 1, 2015.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 15, 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
Pension Benefit Guaranty Corporation.
Notice of request for extension of OMB approval.
The Pension Benefit Guaranty Corporation (PBGC) is requesting that the Office of Management and Budget (OMB) extend approval, under the Paperwork Reduction Act of 1995, of its collection of information for annual financial and actuarial reporting under 29 CFR part 4010 (OMB control number 1212–0049, expires June 30, 2015). This notice informs the public of PBGC's
Comments must be submitted by June 10, 2015.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
A copy of the request (including the collection of information) will be posted at
Grace Kraemer, Attorney, or Catherine B. Klion, Assistant General Counsel, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005–4026; 202–326–4024. (TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and ask to be connected to 202–326–4024.)
Section 4010 of the Employee Retirement Income Security Act of 1974 (ERISA) requires each member of a controlled group to submit financial and actuarial information to PBGC under certain circumstances. PBGC's regulation on Annual Financial and Actuarial Information (29 CFR part 4010) specifies the items of identifying, financial, and actuarial information that filers must submit. PBGC reviews the information that is filed and enters it into an electronic database for more detailed analysis. Computer-assisted analysis of this information helps PBGC to anticipate possible major demands on the pension insurance system and to focus PBGC resources on situations that pose the greatest risk to the system. Because other sources of information are not as current as the 4010 information and do not reflect a plan's termination liability, 4010 filings play a major role in PBGC's ability to protect participant and premium-payer interests.
ERISA section 4010 and PBGC's 4010 regulation specify that each controlled group member must provide PBGC with certain financial information, including audited (if available) or (if not) unaudited financial statements. They also specify that the controlled group must provide PBGC with certain actuarial information necessary to determine the liabilities and assets for all PBGC-covered plans. All non-public information submitted is protected from disclosure. Reporting is accomplished through PBGC's secure e-4010 web-based application.
OMB has approved the 4010 collection of information under control number 1212–0049 through June 30, 2015. PBGC is requesting that OMB extend its approval for another three years. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control number.
PBGC estimates that approximately 300 controlled groups will be subject to 4010 reporting requirements. PBGC further estimates that the total annual burden of this collection of information will be 2,620 hours and $5,088,000.
PBGC is soliciting public comments to—
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodologies and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an addition to Global Expedited Package Services 3 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
On May 5, 2015, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, 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 No. CP2015–62 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 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 May 13, 2015. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Cassie D'Souza to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2015–62 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Cassie D'Souza is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than May 13, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Exchange rules to describe how All-or-None (“AON”) orders are handled by its new Options Floor Broker Management System (“FBMS”).
The text of the proposed rule change is below; proposed new language is italicized; proposed deletions are in brackets.
An all-or-none option order is a limit order which is to be executed in its entirety, or not at all. Unlike a fill-or-kill order, an all-or-none order is not cancelled if it is not executed as soon as it is represented in the trading crowd. An all-or-none order has no standing
For example, if the market in XYZ Oct 30 calls is 4–4.25, 10×15, and there is an all-or-none order on the Specialist's book to sell 10 XYZ Oct 30 calls at 4.25 all-or-none, the Specialist, in response to a request for the market in XYZ Oct 30 calls, should respond:
“The market is 4–4.25, 10×15, 10 (to sell) at 4.25 all-or-none.”
Accordingly, under this policy, all-or-none option orders should be announced to the trading crowd as part of the quoted market, but not as part of the bid or offer.]
Fine not applicable
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.
Today, the Exchange is operating two versions of FBMS as part of an implementation period for the new FBMS. The old FBMS enabled Floor Brokers and/or their employees to enter, route, and report transactions stemming from options orders executed manually (verbally) in open outcry on the Exchange. It also established an electronic audit trail for options orders represented by Floor Brokers on the Exchange. Floor Brokers can use old FBMS to submit orders to the PHLX XL II System (“System”) pursuant to Rule 1063, rather than executing the orders in the trading crowd.
With the new FBMS, all options transactions on the Exchange involving at least one Floor Broker can continue to be represented in open outcry in the trading crowd but are now required to be executed by and through the new FBMS. In connection with order execution, the Exchange allows FBMS to execute two-sided orders entered by Floor Brokers, including multi-leg orders up to 15 legs, after the Floor Broker has represented the orders in the trading crowd. FBMS also provides Floor Brokers with an enhanced functionality called the complex calculator that calculates and displays a suggested price of each individual component of a multi-leg order, up to 15 legs, submitted on a net debit or credit basis. The Exchange deployed the new FBMS in March 2014. Despite the initial intent to phase out the old FBMS after an implementation period involving the old and new FBMS operating concurrently, the Exchange has determined to operate the old FBMS until November 3, 2015 and is planning to implement a new, third FBMS, the details of which will be filed as a proposed rule change.
The purpose of the proposal is to address the way AON orders on the book are handled electronically by the new FBMS.
Although this is how AON orders are treated on the trading floor today when executed manually in the trading crowd, AON orders are treated differently when the new FBMS is used because the System performs the execution. Specifically, in the new FBMS, AON orders that can trade against any eligible interest, not just other AON orders, and they are not skipped. When a Floor Broker seeks to execute an order using the new FBMS where there is an AON order at a price equal to or better than the Floor Broker's order on the contra-side, the Floor Broker must enter his order into the new FBMS and execute against the full size of the AON order electronically. If the Floor Broker does not fulfill the full size of the AON order, the Floor Broker's order will be returned with no execution occurring.
This is the same way that AON orders are treated by the System; they are subject to the normal price and time priority principles of Rule 1014, except that the AON contingency must be met for the AON order to trade. An AON order with time priority will trade in time priority before another customer order if its size contingency can be met. If the size contingency order cannot be met, the AON order will be skipped and a customer order behind it in time priority may execute. Because the new FBMS executes orders electronically and generally provides more electronic functionality, the Exchange believes it is appropriate to address AON orders executed against orders submitted through the new FBMS in the same way.
Accordingly, Advice A–9 is proposed to be amended to expressly state that how AON orders are handled when executed manually (verbally) as well as when executed electronically. With respect to electronic AON orders, the Exchange proposes to expressly state that an AON order has standing and is eligible for execution in time priority with all other customer orders and AON professional orders (as specified in Rule 1000(b)(14)) at that price if the AON contingency can be met. The Exchange is not changing what types of orders a professional can submit nor the priority of those orders. Rule 1000(b)(14) will continue to state that the term “professional” means any person or entity that (i) is not a broker or dealer in securities, and (ii) places more than 390 orders in listed options per day on average during a calendar month for its own beneficial account(s). It will also continue to state that a professional will be treated in the same manner as an off-floor broker-dealer for purposes of Rules 1014(g)(except with respect to AON orders, which will be treated like customer orders, except that orders submitted pursuant to Rule 1080(n) for the beneficial account(s) of professionals with an AON designation will be treated in the same manner as off-floor broker-dealer orders), 1033(e), 1064.02 (except professional orders will be considered customer orders subject to facilitation), 1080(n) and 1080.08 as well as Options Floor Procedure Advices B–6, B–11 and F–5.
The Exchange also proposes to delete the example at the end of Advice A–9. It is obsolete for several reasons; it refers to the “Specialist's book,” which is now generally considered the Exchange's book, the limit order book or just the book; and announcing AON orders on the book to the crowd does not occur where there is a remote specialist. For similar reasons, the Exchange proposes to delete reference to an AON order being “entrusted to a Specialist.” This process is no longer performed.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. This treatment of AON orders should help the Exchange compete with other floor-based exchanges for AON orders. More importantly, the proposal should result in more interaction between AON orders and all other orders, as explained above, thereby promoting a more competitive marketplace.
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) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing.
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.
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)
The Exchange proposes to amend the fees for NYSE OpenBook to add a late fee in connection with failure to submit the non-display use declaration, operative on May 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the fees for NYSE OpenBook, as set forth on the NYSE Proprietary Market Data Fee Schedule (“Fee Schedule”), to add a late fee in connection with failure to submit an updated non-display use declaration. The proposed change to the Fee Schedule would be operative on May 1, 2015.
The Exchange established the current fees for non-display services for NYSE OpenBook in April 2013 and amended those fees in September 2014.
The Exchange notes that if a data recipient does not timely submit a Non-Display Use Declaration, the Exchange does not have up-to-date information about the data recipient's data use and therefore may not be charging the correct fees to the data recipient. In order to correctly assess fees for the non-display use of NYSE OpenBook, the Exchange needs to have current and accurate information about the use of NYSE OpenBook. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting customer records in connection with late Non-Display Use Declarations. The purpose of the proposed late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations.
The Exchange proposes to establish a Non-Display Declaration Late Fee of $1,000 per month. The proposed fee would be charged to any data recipient that pays an Access Fee for NYSE OpenBook that has failed to timely complete and submit a Non-Display Use Declaration.
With respect to the Non-Display Use Declaration that was due by September 1, 2014, the Non-Display Declaration Late Fee would apply to NYSE OpenBook data recipients that have not submitted the Non-Display Use Declaration by June 30, 2015, and would apply beginning July 1, 2015 and for each month thereafter until the data recipient has completed and submitted the Non-Display Use Declaration. With respect to the annual Non-Display Use Declaration due by January 31st of each year beginning in 2016, the Non-Display Declaration Late Fee would apply to data recipients that fail to complete and submit the annual Non-Display Use Declaration by the January 31st due date, and would apply beginning February 1st and for each month thereafter until the data recipient has completed and submitted the annual Non-Display Use Declaration.
In addition to adding the Non-Display Declaration Late Fee for NYSE OpenBook to the Fee Schedule, the Exchange proposes to add an endnote to the Fee Schedule that would specify the effective dates for the Non-Display Declaration Late Fee as described above, and to change the numbering for the existing endnotes as needed.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that it is reasonable to impose a late fee in connection with the submission of the Non-Display Use Declaration. In order to correctly assess fees for the non-display use of NYSE OpenBook, the Exchange needs to have current and accurate information about the use of NYSE OpenBook. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting and following up on payments owed in connection with late Non-Display Use Declarations. The purpose of the late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations. The Non-Display Declaration Late Fee is equitable and not unfairly discriminatory because it will apply to all data recipients that choose to subscribe to the NYSE OpenBook feed.
The Non-Display Declaration Late Fee is also consistent with similar pricing adopted in 2013 by the Consolidated Tape Association (“CTA”).
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data. In addition to being able to choose which proprietary data products (if any) to use and how to use them, a user can avoid the late fees that are the subject of this filing entirely by simply complying with the requisite deadlines.
In setting the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of fierce competition to sell proprietary data products and for order flow, as well as numerous alternatives to the Exchange's products, including proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if the attendant fees are not justified by the returns that any particular vendor or data recipient would achieve through the purchase (the returns on use being a particularly important aspect of non-display uses of proprietary data).
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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)
The Exchange proposes to amend the fees for NYSE Arca Options market data to add a late fee in connection with failure to submit the non-display use declaration, operative on May 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the fees for NYSE Arca Options market data, as set forth on the NYSE Arca Options Proprietary Market Data Fee Schedule (“Fee Schedule”), to add a late fee in connection with failure to submit an updated non-display use declaration. The proposed change to the Fee Schedule would be operative on May 1, 2015.
The Exchange established the current fees for non-display services for ArcaBook for Arca Options, which consists of ArcaBook for Arca Options—Trades, ArcaBook for Arca Options—Top of Book, ArcaBook for Arca Options—Depth of Book, ArcaBook for Arca Options—Complex, ArcaBook for Arca Options—Series Status, and ArcaBook for Arca Options—Order Imbalance, in May 2013 and amended those fees in September 2014.
The Exchange notes that if a data recipient does not timely submit a Non-Display Use Declaration, the Exchange does not have up-to-date information about the data recipient's data use and therefore may not be charging the correct fees to the data recipient. In order to correctly assess fees for the non-display use of NYSE Arca Options market data, the Exchange needs to have current and accurate information about the use of NYSE Arca Options market data. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting customer records in connection with late Non-Display Use Declarations. The purpose of the proposed late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations.
The Exchange proposes to establish a Non-Display Declaration Late Fee of $1,000 per month. The proposed fee would be charged to any data recipient that pays an Access Fee for NYSE ArcaBook for Arca Options or NYSE ArcaBook for Arca Options—Complex that has failed to timely complete and submit a Non-Display Use Declaration.
With respect to the Non-Display Use Declaration that was due by September 1, 2014, the Non-Display Declaration Late Fee would apply to NYSE Arca Options market data recipients that have not submitted the Non-Display Use Declaration by June 30, 2015, and would apply beginning July 1, 2015 and for each month thereafter until the data recipient has completed and submitted the Non-Display Use Declaration. With respect to the annual Non-Display Use Declaration due by January 31st of each year beginning in 2016, the Non-Display Declaration Late Fee would apply to data recipients that fail to complete and submit the annual Non-Display Use Declaration by the January 31st due date, and would apply beginning February 1st and for each month thereafter until the data recipient has completed and submitted the annual Non-Display Use Declaration. A Non-Display Use Declaration that is clearly incomplete would not be considered to have been completed and submitted to the Exchange on time.
In addition to adding the Non-Display Declaration Late Fee for NYSE Arca Options market data to the Fee Schedule, the Exchange proposes to add an endnote to the Fee Schedule that would specify the effective dates for the Non-Display Declaration Late Fee as described above.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that it is reasonable to impose a late fee in connection with the submission of the Non-Display Use Declaration. In order to correctly assess fees for the non-display use of NYSE Arca Options market data, the Exchange needs to have current and accurate information about the use of NYSE Arca Options market data. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting and following up on payments owed in connection with late Non-Display Use Declarations. The purpose of the late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations. The Non-Display Declaration Late Fee is equitable and not unfairly discriminatory because it will apply to all data recipients that choose to subscribe to the NYSE Arca Options market data feeds.
The Non-Display Declaration Late Fee is also consistent with similar pricing adopted in 2013 by the Consolidated Tape Association (“CTA”).
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data. In addition to being able to choose which proprietary data products (if any) to use and how to use them, a user can avoid the late fees that are the subject of this filing entirely by simply complying with the requisite deadlines.
In setting the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of fierce
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission Equity Market Structure Advisory Committee will hold a public meeting on Wednesday, May 13, 2015, in the Multipurpose Room, LL–006 at the Commission's headquarters, 100 F Street NE., Washington, DC.
The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will be open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be webcast on the Commission's Web site at
On April 23, 2015, the Commission published notice of the Committee meeting (Release No. 34–74793), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting will focus on Rule 611 of SEC Regulation NMS.
For further information, please contact the Office of the Secretary at (202) 551–5400.
On January 21, 2015, the BOX Options Exchange LLC (the “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 list and trade, on a pilot basis, P.M.-settled, cash-settled, European-style options settling to the Index (proposed symbol VOLS
The Index is calculated using a methodology developed by The VolX Group Corporation (“VolX”),
The Exchange proposes that its standard trading hours for index options (9:30 a.m. to 4:15 p.m., Eastern time) will apply to VOLS. Standard VOLS will expire on the third Friday of each month. Trading in expiring VOLS will normally cease at 4:15 p.m. (Eastern time) on the business day of expiration, or, in the case of an option contract expiring on a day that is not a business day, on the last business day before its expiration. The exercise and settlement value will be calculated based on the Index value at the close of the last business day of trading, which is ultimately based on the closing price of SPY on the last business day of trading, for its final input value. The exercise-settlement amount is equal to the difference between the settlement value and the exercise price of the option, multiplied by $100. Exercise will result in the delivery of cash on the business day following expiration.
The Exchange proposes to adopt minimum trading increments for VOLS to be $0.05 for series trading below $3, and $0.10 for series trading at or above $3. The Exchange also proposes to set the minimum strike price interval at $0.50 strike price (or greater) intervals for VOLS where the strike price is less than $75; $1 strike price (or greater) intervals where the strike price is $200 or less; and $5 strike price (or greater) intervals where the strike price is greater than $200.
Amendment No. 1 corrects an inaccurate statement in the Notice regarding the exercise price range limitations for new series of index options.
The Exchange states that its rules provide that index option contracts may expire at three-month intervals or in consecutive months.
The Exchange believes that the Index is a broad-based index, as that term is defined in BOX Rule 6010(j).
In addition, the Exchange proposes that the trading of options on the Index will be subject to the same rules that currently govern the trading of Exchange index options, including sales practice rules and trading rules.
The Exchange believes that because the Index will settle using published quotes for SPY and there are currently no position limits for SPY options, it is appropriate not to impose position or exercise limits for VOLS. The Exchange notes that because the size of the market underlying SPY options is so large, it should dispel concerns regarding market manipulation. The Exchange believes that the same reasoning applies to VOLS since the value of VOLS is derived from the realized volatility of SPY. The Exchange also notes that VIX options are not subject to any position or exercise limits.
The Exchange proposes that proposed rule change to list and trade VOLS be approved on a pilot basis for a period of twelve months. As part of the Pilot Program, the Exchange committed to submit a pilot program report to the Commission two months prior to the expiration date of the pilot program (the “annual report”).
After careful consideration of the proposal, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange,
The Commission believes that the Exchange's proposal to impose no position or exercise limits on VOLS is appropriate and consistent with the Act. The Commission also believes that the proposed strike price intervals are consistent with the Act. $0.50 or greater strikes for VOLS where the strike price is less than $75, $1 or greater strike price intervals for VOLS where the strike price is $200 or less, and $5 or greater strike price intervals for VOLS when the strike price is greater than $200 should provide investors with added flexibility in the trading of VOLS options and will further the public interest by allowing investors to establish positions that are better tailored to meet their investment objectives. Moreover, the Commission notes that, under the Exchange's rules, the strike prices of new or additional series of VOLs shall be reasonably related to—
The Commission also believes that it is consistent with the Act to apply margin requirements to the proposed VOLS product that are identical to the margin requirements adopted by the CBOE for options on the VIX. The Exchange has represented that BOX options participants and their associated persons are bound by the initial and maintenance margin requirements of either the CBOE or the New York Stock Exchange, pursuant to BOX Rule 10120.
In the Commission's order approving the listing and trading of P.M.-settled options on the S&P 500 Index on CBOE,
BOX's proposed twelve-month pilot will enable the Commission to collect current data to assess and monitor for any potential for impact on the markets. In particular, the data collected from BOX's Pilot Program will help inform the Commission's consideration of whether the pilot should be modified, discontinued, extended, or permanently approved. The Pilot Program information should help the Commission assess the impact on the markets and determine whether other changes are necessary. Furthermore, the Exchange's ongoing analysis of the pilot should help it monitor any potential risks from large P.M.-settled positions and take appropriate action on a timely basis if warranted.
As a national securities exchange, the Exchange is required, under Section 6(b)(1) of the Act,
Accordingly, for the reasons stated above, the Commission finds good cause, pursuant to Section 19(b)(2)
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”),
Nasdaq proposes a rule change with respect to the First Trust High Income ETF (the “Fund”) of First Trust Exchange-Traded Fund VI (the “Trust”), the shares of which have been approved by the Commission for listing and trading under NASDAQ Rule 5735 (“Managed Fund Shares”). The shares of the Fund are collectively referred to herein as the “Shares.”
The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to reflect changes to the means of achieving the Fund's investment objectives. The Commission has approved the listing and trading of Shares under NASDAQ Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange.
The Prior Release provided that the Fund's primary investment objective would be to provide current income and that its secondary investment objective would be to provide capital appreciation. Further, the Prior Notice provided that the Fund would pursue its objectives by investing in large-cap U.S. exchange-traded equity securities and by utilizing an “option strategy” consisting of writing (selling) exchange-traded covered call options on the Standard & Poor's 500 Index (the “Index”).
The Exchange now proposes two modifications to the description of the measures utilized by the Adviser to implement the Fund's investment objectives. As described in further detail below, these pertain to the following: (1) The Fund's investment primarily in large-cap U.S. exchange-traded equity securities; and (2) the permissible terms to expiration for the U.S. exchange-traded covered call options written (sold) by the Fund. These modifications are being proposed to enhance the Adviser's flexibility in pursuing the Fund's investment objectives. However, the equity securities in which the Fund would invest and the options which the Fund would write would continue to be limited to U.S. exchange-traded securities and options, respectively. The Adviser represents that there would be no change to the Fund's investment objectives. Except as provided herein, all other facts presented and representations made in the Prior Release would remain unchanged. The Fund and the Shares would continue to comply with all initial and continued listing requirements under NASDAQ Rule 5735.
The Prior Release stated that in pursuing its investment objectives, under normal market conditions,
As provided in the Prior Release, the option portion of the Fund's portfolio generally consists of U.S. exchange-traded covered calls or covered call spreads on the Index that are written by the Fund. The Prior Release provided that the call options written by the Fund would typically be a laddered portfolio of one week, one month, two months and three months and would typically be written at-the-money to slightly out-of-the-money. The Exchange is now proposing a change that would increase flexibility with respect to the permissible term for call option expirations. In this regard, the Exchange proposes to modify the foregoing to provide that, going forward, the call options written by the Fund would be a laddered portfolio of call options with expirations of less than one year, written at-the-money to slightly out-of-the-money.
The Exchange represents that trading in the Shares would continue to be subject to the existing trading surveillances, administered by both NASDAQ and also the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, in the U.S. exchange-traded equity securities in which the Fund invests, and in the U.S. exchange-traded options which the Fund writes with other markets or other entities that are members of the Intermarket Surveillance Group (“ISG”) or with which the Exchange has in place a comprehensive surveillance sharing agreement,
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares would continue to be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NASDAQ Rule 5735. Consistent with the Prior Release, the Exchange represents that trading in the Shares would continue be subject to the existing trading surveillances, administered by both NASDAQ and also FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws and that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. In addition, the equity securities in which the Fund would invest and the options which the Fund would write would continue to be limited to U.S. exchange-traded securities and options, respectively, that trade in markets that are members of ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange. The Exchange would continue to be able to obtain information regarding trading in the Shares and in such equity securities and options from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Adviser represents that there is no change to the Fund's investment objectives. The Adviser represents that the purpose of the proposed changes is to provide it with greater flexibility in meeting the Fund's investment objectives by permitting: (1) The Fund to invest primarily in U.S. exchange-traded equity securities of any market capitalization; and (2) the covered call options written by the Fund to be a laddered portfolio of call options with expirations of less than one year, written at-the-money to slightly out-of-the-money. In addition, consistent with the Prior Release, net asset value (“NAV”) per Share would continue to be calculated daily and the NAV and Disclosed Portfolio (as defined in the Prior Release) would continue to be made available to all market participants at the same time. Further, a large amount of information would continue to be publicly available regarding the Fund and the Shares, thereby promoting market transparency. The Intraday indicative Value (as defined in the Prior Release), available on NASDAQ OMX Information LLC proprietary index data service, would continue to be updated and widely disseminated and broadly displayed at least every 15 seconds during the Regular Market Session.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. As noted above, the additional flexibility to be afforded to the Adviser under the proposed rule change is intended to enhance the Adviser's ability to meet the Fund's investment objectives. Further, as noted above, the Exchange represents that trading in the Shares would continue to be subject to the existing trading surveillances, administered by both NASDAQ and also FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. In addition, as indicated in the Prior Release, investors would continue to have ready access to information regarding the Fund's holdings, the Intraday Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares. The Adviser represents that the proposed rule change, as described above, is consistent with the Fund's investment objectives, and would further assist the Adviser in achieving such investment objectives.
For the above reasons, the Exchange believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rule change will permit the Adviser additional flexibility, thereby helping the Fund to achieve its investment objectives and enhancing competition among issues of Managed Fund Shares.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (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, Station Place, 100 F Street NE., Washington, DC 20549–1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of Nasdaq. 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–NASDAQ–2015–044 and should be submitted on or before June 1, 2015.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the fees for NYSE Amex Options market data to add a late fee in connection with failure to submit the non-display use declaration, operative on May 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the fees for NYSE Amex Options market data, as set forth on the NYSE Amex Options Proprietary Market Data Fee Schedule (“Fee Schedule”), to add a late fee in connection with failure to submit an updated non-display use declaration. The proposed change to the Fee Schedule would be operative on May 1, 2015.
The Exchange established the current fees for non-display services for ArcaBook for Amex Options, which consists of ArcaBook for Amex Options—Trades, ArcaBook for Amex Options—Top of Book, ArcaBook for Amex Options—Depth of Book, ArcaBook for Amex Options—Complex, ArcaBook for Amex Options—Series Status, and ArcaBook for Amex Options—Order Imbalance, in May 2013 and amended those fees in September 2014.
The Exchange notes that if a data recipient does not timely submit a Non-Display Use Declaration, the Exchange does not have up-to-date information about the data recipient's data use and therefore may not be charging the correct fees to the data recipient. In order to correctly assess fees for the non-display use of NYSE Amex Options market data, the Exchange needs to have current and accurate information about the use of NYSE Amex Options market data. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting customer records in connection with late Non-Display Use Declarations. The purpose of the proposed late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations.
The Exchange proposes to establish a Non-Display Declaration Late Fee of $1,000 per month. The proposed fee would be charged to any data recipient that pays an Access Fee for NYSE ArcaBook for Amex Options or NYSE ArcaBook for Amex Options—Complex that has failed to timely complete and submit a Non-Display Use Declaration.
With respect to the Non-Display Use Declaration that was due by September 1, 2014, the Non-Display Declaration Late Fee would apply to NYSE Amex Options market data recipients that have not submitted the Non-Display Use Declaration by June 30, 2015, and would apply beginning July 1, 2015 and for each month thereafter until the data recipient has completed and submitted the Non-Display Use Declaration. With respect to the annual Non-Display Use Declaration due by January 31st of each year beginning in 2016, the Non-Display Declaration Late Fee would apply to data recipients that fail to complete and submit the annual Non-Display Use Declaration by the January 31st due date, and would apply beginning February 1st and for each month thereafter until the data recipient has completed and submitted the annual Non-Display Use Declaration. A Non-Display Use Declaration that is clearly incomplete would not be considered to have been completed and submitted to the Exchange on time.
In addition to adding the Non-Display Declaration Late Fee for NYSE Amex Options market data to the Fee Schedule, the Exchange proposes to add an endnote to the Fee Schedule that would specify the effective dates for the Non-Display Declaration Late Fee as described above, and to change the numbering for the existing endnotes as needed.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that it is reasonable to impose a late fee in connection with the submission of the Non-Display Use Declaration. In order to correctly assess fees for the non-display use of NYSE Amex Options market data, the Exchange needs to have current and accurate information about the use of NYSE Amex Options market data. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect
The Non-Display Declaration Late Fee is also consistent with similar pricing adopted in 2013 by the Consolidated Tape Association (“CTA”).
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data. In addition to being able to choose which proprietary data products (if any) to use and how to use them, a user can avoid the late fees that are the subject of this filing entirely by simply complying with the requisite deadlines.
In setting the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of fierce competition to sell proprietary data products and for order flow, as well as numerous alternatives to the Exchange's products, including proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if the attendant fees are not justified by the returns that any particular vendor or data recipient would achieve through the purchase (the returns on use being a particularly important aspect of non-display uses of proprietary data).
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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)
The Exchange proposes to amend the fees for NYSE Order Imbalances to add a late fee in connection with failure to submit the non-display use declaration, operative on May 1, 2015. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the fees for NYSE Order Imbalances, as set forth on the NYSE Proprietary Market Data Fee Schedule (“Fee Schedule”), to add a late fee in connection with failure to submit an updated non-display use declaration. The proposed change to the Fee Schedule would be operative on May 1, 2015.
The Exchange established the current fees for non-display services for NYSE OpenBook, NYSE Trades and NYSE BBO in April 2013 and amended those fees and added non-display fees for NYSE Order Imbalances in September 2014.
The Exchange notes that if a data recipient does not timely submit a Non-Display Use Declaration, the Exchange does not have up-to-date information about the data recipient's data use and therefore may not be charging the correct fees to the data recipient. In order to correctly assess fees for the non-display use of NYSE Order Imbalances, the Exchange needs to have current and accurate information about the use of NYSE Order Imbalances. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting customer records in connection with late Non-Display Use Declarations. The purpose of the proposed late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations.
The Exchange proposes to establish a Non-Display Declaration Late Fee of $1,000 per month. The proposed fee would be charged to any data recipient that pays an Access Fee for NYSE Order Imbalances that has failed to timely complete and submit a Non-Display Use Declaration.
With respect to the Non-Display Use Declaration that was due by September 1, 2014, the Non-Display Declaration Late Fee would apply to NYSE Order Imbalances data recipients that have not submitted the Non-Display Use Declaration by June 30, 2015, and would apply beginning July 1, 2015 and for each month thereafter until the data recipient has completed and submitted the Non-Display Use Declaration. With respect to the annual Non-Display Use Declaration due by January 31st of each year beginning in 2016, the Non-Display Declaration Late Fee would apply to data recipients that fail to complete and submit the annual Non-Display Use Declaration by the January 31st due date, and would apply beginning February 1st and for each month thereafter until the data recipient has completed and submitted the annual Non-Display Use Declaration.
In addition to adding the Non-Display Declaration Late Fee for NYSE Order Imbalances to the Fee Schedule, the Exchange proposes to add an endnote to the Fee Schedule that would specify the effective dates for the Non-Display Declaration Late Fee as described above,
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that it is reasonable to impose a late fee in connection with the submission of the Non-Display Use Declaration. In order to correctly assess fees for the non-display use of NYSE Order Imbalances, the Exchange needs to have current and accurate information about the use of NYSE Order Imbalances. The failure of data recipients to submit the Non-Display Use Declaration on time leads to potentially incorrect billing and administrative burdens, including tracking and obtaining late Non-Display Use Declarations and correcting and following up on payments owed in connection with late Non-Display Use Declarations. The purpose of the late fee is to incent data recipients to submit the Non-Display Use Declaration promptly to avoid the administrative burdens associated with the late submission of Non-Display Use Declarations. The Non-Display Declaration Late Fee is equitable and not unfairly discriminatory because it will apply to all data recipients that choose to subscribe to the NYSE Order Imbalances feed.
The Non-Display Declaration Late Fee is also consistent with similar pricing adopted in 2013 by the Consolidated Tape Association (“CTA”).
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data. In addition to being able to choose which proprietary data products (if any) to use and how to use them, a user can avoid the late fees that are the subject of this filing entirely by simply complying with the requisite deadlines.
In setting the proposed fees, the Exchange considered the competitiveness of the market for proprietary data and all of the implications of that competition. The Exchange believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of fierce competition to sell proprietary data products and for order flow, as well as numerous alternatives to the Exchange's products, including proprietary data from other sources, ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can elect these alternatives or choose not to purchase a specific proprietary data product if the attendant fees are not justified by the returns that any particular vendor or data recipient would achieve through the purchase (the returns on use being a particularly important aspect of non-display uses of proprietary data).
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the Commonwealth of Kentucky (FEMA–4217–DR), dated 05/01/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 05/01/2015, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14297B and for economic injury is 142980.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Kentucky (FEMA–4217–DR), dated 05/01/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 05/01/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14299B and for economic injury is 14300B.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting
Submit comments on or before June 10, 2015.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205–7030
The Office of Veterans Business Development (OVBD) at the U.S. Small Business Administration implements applicable sections of the Small Business Act, of Public Laws and Executive Orders governing veteran programs, and to support the SBA mission to assist eligible American veterans and Reservist Component service members by providing access to the tools and resources necessary for entrepreneurs to start, run, and grow their businesses. OVBD manages the Veterans Business Outreach Centers (VBOC) which was established in 1999 pursuant to Public Law 106–50. VBOCs offer pre-business plan workshops, concept assessment and business plan preparation, feasibility analysis entrepreneurship counseling and training, online assistance, and mentorship service to veteran entrepreneurs and veteran-owned small business concerns controlled by veterans, service-disabled veterans, and Reserve Component members. As part of OVBD's effort to enhance the services provided by VBOCs to veterans and veteran-owned small businesses, OVBD has acquired the service of a research firm to conduct a series of data collection. In addition, a part of the forthcoming new cycle of grant solicitation for 2015, SBA will assess the population assisted by current VBOCs, funded in 2010, the services provided to individuals, the preliminary impact of services on the business goals of clients, client satisfaction with VBOCs, and lessons learned and recommendations by the VBOCs and clients. Through the WebCATS/Neoserra system, SBA has the ability to collect some data on VBOC clients and VBOC activities. However, to get a better understanding of the full range of topics mentioned above, SBA needs to collect survey and interview data from VBOC clients, directors, and staff (non-directors of VBOCs that help provide services to people). Specifically, SBA proposes the use of five different instruments for data collection and analysis. These instruments are: (1) A VBOC client survey; (2) a VBOC director survey; (3) VBOC client interviews; (4) VBOC director interviews; and (5) VBOC staff interviews. SBA plans to administer each instrument to more than nine individuals. The surveys will be administered electronically, while the interviews will be conducted either in-person or via phone. The interview questions will contain all open-ended questions, while the web-based survey will contain both open- and close-ended questions. The types of information that will be collected in the instruments can be found in the “Summary of Information Collection” section below. Quantitative analysis (the primary method of data analysis for the survey data) and qualitative analysis (the primary method of data analysis for the interview data) will be used on the data collected. Quantitative analysis will consist of univariate and multivariate statistical analyses, while qualitative analysis will consist of establishing clear rules for interpretation and finding themes in the interview data. The information collected and analyzed from these instruments will contribute to performance metrics and program goals as well as recommendations on improving program practices.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before June 10, 2015.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205–7030
Each form is used to notify recipients of grant awards and cooperative agreement awards. Form 1222 is used also to document logistical and budgetary information gathered from the awardees application and proposal. Awardees/Respondents are universities, colleges state and local government, for-profit and non-profit organization. Form 1224 is used to certify the cost sharing by the recipient.
Comments may be submitted on (a) whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kentucky (FEMA–4216–DR), dated 04/30/2015.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 04/30/2015, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14295B and for economic injury is 14296B.
The Small Business Administration published a document in the
In the document printed on May 5, 2015, the first full sentence on page 25764 under the caption: “5. Selection of Winners” includes a reference that at least one official from the National Endowment for the Arts will serve as a judge. This reference should be removed and the sentence should read:
5.
Federal Motor Carrier Safety Administration (FMCSA).
Notice of applications for exemptions request for comments.
FMCSA announces receipt of applications from 51 individuals for exemption from the prohibition against persons with insulin-treated diabetes mellitus (ITDM) operating commercial motor vehicles (CMVs) in interstate commerce. If granted, the exemptions would enable these individuals with ITDM to operate CMVs in interstate commerce.
Comments must be received on or before June 10, 2015.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA–2015–0059 using any of the following methods:
•
•
•
•
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The 51 individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Abitz, 46, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Abitz understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Abitz meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Bartlett, 56, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Bartlett understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Bartlett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Becker, 23, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Becker understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Becker meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Illinois.
Mr. Boardwick, 54, has had ITDM since 1994. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Boardwick understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Boardwick meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from New Jersey.
Mr. Brede, 51, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Brede understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Brede meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Iowa.
Mr. Buckley, 62, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Buckley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV
Mr. Burris, 31, has had ITDM since 1997. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Burris understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Burris meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Minnesota.
Mr. Clark, 42, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Clark understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Clark meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia.
Mr. Cooper, 23, has had ITDM since 2000. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cooper understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cooper meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds an operator's license from Wisconsin.
Mr. Crockett, 67, has had ITDM since 1995. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Crockett understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Crockett meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.
Mr. Cummings, 64, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cummings understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cummings meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Davidge, 69, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Davidge understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Davidge meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Maryland.
Mr. Dillard, 49, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dillard understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dillard meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois.
Mr. Drake, 46, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Drake understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Drake meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Texas.
Mr. Fulcher, 60, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the
Mr. Glenn, 66, has had ITDM since 1991. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Glenn understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Glenn meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from California.
Mr. Goddard, 44, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Goddard understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Goddard meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from West Virginia.
Mr. Green, 50, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Green understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Green meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Oklahoma.
Mr. Heins, 54, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Heins understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Heins meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Illinois.
Mr. Henry, 55, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Henry understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Henry meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class C CDL from Virginia.
Mr. Holmes, 66, has had ITDM since 2011. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Holmes understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Holmes meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Delaware.
Mr. Hullinger, 26, has had ITDM since 2009. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hullinger understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hullinger meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Utah.
Mr. Kuhns, 51, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kuhns understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kuhns meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Leckie, 33, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no
Mr. Lee, 51, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lee understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lee meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Lewis, 50, has had ITDM since 2007. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lewis understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lewis meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Alaska.
Mr. Lowe, 31, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lowe understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lowe meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Virginia.
Mr. Mapp, 67, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Mapp understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Mapp meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from South Carolina.
Mr. Masser, 50, has had ITDM since 1982. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Masser understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Masser meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Medberry, 23, has had ITDM since 1992. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Medberry understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Medberry meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds an operator's license from Ohio.
Mr. Merlo, 28, has had ITDM since 2006. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Merlo understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Merlo meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from California.
Mr. Miesner, 40, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Miesner understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Miesner meets the
Mr. Miller, 58, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Miller understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Miller meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Minnesota.
Mr. Moalin, 44, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Moalin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Moalin meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Arizona.
Mr. Murray, 47, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Murray understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Murray meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Oklahoma.
Mr. Olson, 27, has had ITDM since 2000. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Olson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Olson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds an operator's license from Texas.
Ms. Olson, 45, has had ITDM since 2014. Her endocrinologist examined her in 2015 and certified that she has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. Her endocrinologist certifies that Ms. Olson understands diabetes management and monitoring, has stable control of her diabetes using insulin, and is able to drive a CMV safely. Ms. Olson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). Her optometrist examined her in 2015 and certified that she does not have diabetic retinopathy. She holds a Class B CDL from Montana.
Mr. Osterhout, 56, has had ITDM since 2013. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Osterhout understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Osterhout meets the requirements of the vision standard at 49 CFR 391.41(b) (10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Idaho.
Mr. Riedl, 40, has had ITDM since 2007. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Riedl understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Riedl meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Roberts, 45, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Roberts understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Roberts meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from North Carolina.
Mr. Robinson, 63, has had ITDM since 2007. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or
Mr. Sandine, 45, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sandine understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sandine meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Arkansas.
Mr. Simko, 25, has had ITDM since 2013. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Simko understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Simko meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Pennsylvania.
Mr. Sobczak, 50, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Sobczak understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Sobczak meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Wisconsin.
Mr. Tallen, 60, has had ITDM since 2014. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Tallen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Tallen meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.
Mr. Thein, 56, has had ITDM since 2008. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Thein understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Thein meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class C CDL from Georgia.
Mr. Turnbull, 37, has had ITDM since 1989. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Turnbull understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Turnbull meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from New York.
Mr. Walston, 39, has had ITDM since 2015. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Walston understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Walston meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Iowa.
Mr. Wharton-Ramirez, 60, has had ITDM since 2003. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Wharton-Ramirez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Wharton-Ramirez meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2015 and certified that he has stable proliferative diabetic retinopathy. He holds a Class A CDL from New Jersey.
Mr. White, 61, has had ITDM since 2009. His endocrinologist examined him in 2014 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. White understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. White meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2014 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.
Mr. Williamson, 57, has had ITDM since 2012. His endocrinologist examined him in 2015 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Williamson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Williamson meets the requirements of the vision standard at 49 CFR 391.41(b)(10). His optometrist examined him in 2015 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.
FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441).
Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.
In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136 (e).
Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.
The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, To submit your comment online, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT
Notice of final disposition.
FMCSA confirms its decision to exempt 39 individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions enable these individuals to operate CMVs in interstate commerce.
The exemptions were effective on April 18, 2015. The exemptions expire on April 18, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 18, 2015, FMCSA published a notice of receipt of Federal diabetes exemption applications from 39 individuals and requested comments from the public (80 FR 14232). The public comment period closed on April 17, 2015, and no comments were received.
FMCSA has evaluated the eligibility of the 39 applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These 39 applicants have had ITDM over a range of one to 33 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the March 18, 2015,
FMCSA received no comments in this proceeding.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
Based upon its evaluation of the 39 exemption applications, FMCSA exempts the following drivers from the diabetes requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above 949 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Railroad Administration (FRA), Department of Transportation.
Announcement of Railroad Safety Advisory Committee (RSAC) meeting.
FRA announces the fifty-third meeting of the RSAC, a Federal Advisory Committee that develops railroad safety recommendations through a consensus process. The RSAC meeting topics will include opening remarks from the FRA Acting Administrator, the FRA Associate Administrator for Safety/Chief Safety Officer, and status reports by the Recording Devices and Rail Integrity Working Groups. The Engineering Task Force also will provide a status report and there will be presentations on grade crossing issues, as well as the Pipeline and Hazardous Materials Safety Administration's Final Rule on Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains. This agenda is subject to change, including the possible addition of further proposed tasks.
The RSAC meeting is scheduled to commence at 9:30 a.m. on Thursday, May 28, 2015, and will adjourn by 4:30 p.m.
The RSAC meeting will be held at the Double Tree Hotel located at 1515 Rhode Island Avenue NW., Washington, DC 20005. The meeting is open to the public on a first-come, first-served basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Larry Woolverton, RSAC Administrative Officer, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493–6286; or Jamie Rennert, Deputy Associate Administrator for Regulatory & Legislative Operations, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Mailstop 25, Washington, DC 20590, (202) 493–6474.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), FRA is giving notice of a meeting of the RSAC. The RSAC was established to provide advice and recommendations to FRA on railroad safety matters. The RSAC is composed of 60 voting representatives from 39 member organizations, representing various rail industry perspectives. In addition, there are non-voting advisory representatives from the agencies with railroad safety regulatory responsibility in Canada and Mexico, the National Transportation Safety Board, and the Federal Transit Administration. The diversity of the RSAC ensures the requisite range of views and expertise necessary to discharge its responsibilities. See the RSAC Web site for details on prior RSAC activities and pending tasks at
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) for projects in Provo City and Orem City, Utah County, UT, and Tarrant County, TX. The purpose of this notice is to announce publicly the environmental decisions by FTA on the subject projects and to activate the limitation on any claims that may challenge these final environmental actions.
By this notice, FTA is advising the public of final agency actions subject to Section 139(l) of Title 23, United States Code (U.S.C.). A claim seeking judicial review of FTA actions announced herein for the listed public transportation projects will be barred unless the claim is filed on or before October 8, 2015.
Nancy-Ellen Zusman, Assistant Chief Counsel, Office of Chief Counsel, (312) 353–2577 or Terence Plaskon, Environmental Protection Specialist, Office of Environmental Programs, (202) 366–0442. FTA is located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 9:00 a.m. to 5:30 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions by issuing certain approvals for the public transportation projects listed below. The actions on the projects, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the projects to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA administrative record for the projects. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information on each project. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA [42 U.S.C. 4321–4375], Section 4(f) of the Department of Transportation Act of
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Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, 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 continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA).
Under the PRA, Federal agencies are required to publish notice in the
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. Currently, the OCC is soliciting comment concerning the renewal of an existing collection titled “Customer Complaint Form.”
You should submit written comments by July 10, 2015.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557–0232, 400 7th Street SW., Suite 3E–218, Mail Stop 9W–11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465–4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Shaquita Merritt, OCC Clearance Officer, (202) 649–5490, for persons who are deaf or hard of hearing, TTY, (202) 649–5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
The OCC is requesting that OMB extend its approval of the following collection:
CAG uses the information included in a completed form to create a record of the consumer's contact, capture information that can be used to resolve the consumer's issues, and provide a database of information that is incorporated into the OCC's supervisory process.
Comments submitted in response to this notice will be summarized and
Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information shall have practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
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 a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the “Application for Relief on Account of Loss, Theft, or Destruction of United States Savings and Retirement Securities” and “Supplemental Statement Concerning United States Securities”.
Written comments should be received on or before July 10, 2015 to be assured of consideration.
Direct all written comments and requests for further information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
Requests for additional information or copies of the form(s) and instructions should be directed to Ron Lewis; 200 Third Street Room 527, Parkersburg, WV 26106–1328, or
Transfer of OMB Control Number: The Bureau of Public Debt (BPD) and the Financial Management Service (FMS) have consolidated to become the Bureau of the Fiscal Service (Fiscal Service). Information collection requests previously held separately by BPD and FMS will now be identified by a 1530 prefix, designating Fiscal Service.
U.S.-China Economic and Security Review Commission
Notice of open public hearing—May 13, 2015, Washington, DC.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
Any member of the public seeking further information concerning the hearing should contact Reed Eckhold, 444 North Capitol Street NW., Suite 602, Washington DC 20001; phone: 202–624–1496, or via email at
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Pub.L. 106–398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Pub. L. 108–7), as amended by Public Law 109–108 (November 22, 2005), as amended by Public Law 113–291 (December 19, 2014).
Bureau of Indian Affairs, Interior.
Final rule.
The Bureau of Indian Affairs is issuing its final revisions to the regulations addressing mineral development of the Osage minerals estate. This rule updates the leasing procedures and the rental, operations, safety and royalty requirements for oil and gas production on Osage mineral lands and is the result of a negotiated rulemaking.
This rule is effective on July 10, 2015.
Mr. Eddie Streater, Designated Federal Officer, Bureau of Indian Affairs, P.O. Box 8002, Muscogee, OK 74402; telephone (918) 781–4608; fax (918) 718–4604; or email
This rule updates the existing oil and gas regulations governing Osage County, Oklahoma as set forth in 25 CFR part 226. It is intended to strengthen the management and administration of the Osage mineral estate for the benefit of the Osage. These provisions strengthen the rule's reporting and inspection requirements, offer more specificity regarding a lessee's obligations with respect to its mining operations, and adjust royalty rate calculations and bonding amounts, in order to protect the best interests of the Osage mineral estate, ensure safety, and discourage future regulatory violations.
On October 14, 2011, the United States and the Osage Nation (formerly known and referred to in Rule 226 as the “Osage Tribe”) signed a Settlement Agreement to resolve litigation regarding the United States' alleged mismanagement of the Osage Nation's oil and gas mineral estate, along with other unrelated claims. In the Settlement Agreement, the parties agreed “to address means of improving the trust management of the Osage Mineral Estate, the Osage Tribal Trust Account, and Other Osage Accounts.” The parties agreed that a review and revision of the existing regulations is warranted to better assist the Bureau of Indian Affairs (BIA or Bureau) in managing the Osage mineral estate. The parties agreed to engage in a negotiated rulemaking for this purpose. Pursuant to the required, applicable procedures, after the Tribal Trust Settlement was executed, the Department of the Interior (Department) established a Negotiated Rule Making Committee in July 2012 and commenced structured negotiations on the amendment and revision of Rule 226. For additional information on this negotiated rulemaking process, please visit
The Negotiated Rule Making Committee submitted its report to BIA on April 25, 2013. On August 28, 2013, BIA published a proposed rule based on the Committee's report.
This final rule revises the existing rule for “Leasing of Osage Reservation Lands for Oil and Gas Mining” with the textual and substantive changes as set forth in Table 1. The BIA's additional revisions to the proposed rule that resulted from the comment period and BIA's consideration and evaluation of those comments (as set forth in Section IV below) were adopted in BIA's final rule as published herein and as set forth in Table 2.
Table 2 below sets forth the substantive changes made in the final rule to the text of the proposed rule as published August 28, 2013. The basis for each of these changes is discussed in the next section of this preamble.
In drafting the final rule, the Department made revisions to the proposed rule based on its own internal review, in addition to its review and analysis of the public comments. This section sets forth those the changes made as a result of that internal review. In Section 226.1, the Department added references to “other marketable product” in the definitions of “lease” and “Osage Mineral Council” in order to fully incorporate the addition of the term “other marketable product” into
The Department revised the definition of “waste of oil or gas or other marketable product” to clarify that waste only occurs after the Superintendent makes a specific finding. The Department was concerned that without that change, the regulations would suggest that any production without the advance approval of the Superintendent would be considered waste, resulting in unnecessary administrative burdens.
In 226.3, the Department qualified that that consultation with the Osage Minerals Council is required where appropriate and notes that consultation must be conducted in accordance with the Department's Tribal Consultation Policy where applicable. Similarly, the notice and comment requirements of the Administrative Procedure Act (APA) do not apply to each of the proposed actions and the reference to requiring adherence to the APA has been removed to avoid any presumption that notwithstanding the limitations of the APA, it automatically applies. Rather, it should be noted that the APA only applies where required by law. For example, notices to lessees (NTLs) are interpretive rules that are not subject to the notice and comment requirements of the APA.
The Department deleted the word “other” from 226.4(a)(4) because it was confusing. The Superintendent is responsible for approving and monitoring all lease proposals, not “other” lease proposals.
The phrase “unless otherwise approved by the Superintendent” was added to the end of Section 226.4(a)(10) because as drafted it did not allow the Superintendent to approve actions that might have adverse effects on other mineral resources. However, there might be instances where the Osage Minerals Council wants to allow certain mining to have adverse effects on other lesser mineral resources, and the Department determined that the Superintendent must retain discretion to approve those actions depending on the circumstances.
In Section 226.5(a)(4)(ii), the phrase “twenty five percent of the bonus bid” at the beginning of the provision was deleted because it was inconsistent with subsection (a)(3). That subsection requires that a minimum deposit of twenty five percent of the cash bonus be offered, but it is possible for additional amounts to be deposited, and the intent of Section 226.5(a)(4)(ii) is for all of the deposit to be forfeited under certain circumstances. Section 226.5(a)(4)(ii)(C) was amended to add a reference to subsection 5 for clarification purposes. To address confusion within Osage County regarding the applicability of environmental laws, Section 226.5(d) was amended to clarify that the Agency must comply with applicable laws, including the National Environmental Policy Act (NEPA), before issuing leases and will do so by following applicable BIA regulations. Section 226.5(f) was amended to delete the reference to ownership of stock and instead reference an employee who acquires an interest in a corporation or business entity holding a lease, because one cannot acquire an “interest in a lease” by merely owning stock in a company.
In Section 226.6(b)(4), the Department deleted the reference to surrender of a separate horizon because the Osage Agency does not lease or sublease by separate horizons, in light of the administrative burdens those arrangements have caused in the past. Furthermore, allowing surrender of separate horizons causes similar problems and is not permitted elsewhere on other Indian and Federal lands.
The Department deleted subsection (c) in 226.11 because it was repetitive of the prior paragraph and the release language was moved to the beginning for clarification. In 226.14(c), the 90 day timeline for a determination on diligent production was deleted because it is considered overly burdensome, administratively. Instead, a provision was added that allows the Superintendent to require the lessee and Osage Minerals Council to submit additional information so that he/she can make an informed determination.
In Section 226.18, the Department amended subsection (a) to allow royalty to be taken in kind so that the provision is consistent with subsection (b). In 226.18(b), the provision regarding time for payment was deleted because timing of payment is governed by Section 226.25, and in subparagraph (b)(2) the provision relating to the availability of the average NYMEX daily price was moved to subparagraph (b)(1) to correct an error in the proposed rule.
In Section 226.22, the Department revised how minimum royalty is calculated because, as set out in the proposed rule, the provision confuses separate lease concepts. Minimum royalty is a separate lease term and not a subset of royalty, and Section 226.22 is not about underpayment of minimum royalty, but about the occurrence of a circumstance that triggers the obligation to pay minimum royalty.
In Section 226.25, the Department added a requirement to subsection (a) that requires lessees to provide a written agreement if the purchaser has agreed to be the responsible party for making payments. This change is intended to reduce the administrative burden placed on the Superintendent when having to determine the responsible party. Also, a cross-reference to subsection (a) was added to subsection (c) for consistency. In addition, the phrase “unless otherwise provided by the Osage Minerals Council and approved by the Superintendent” was deleted to standardize and ensure prompt, consistent payments. For the same reason, and to aid in the administrative implementation of the provision, the Department deleted the provisions in subsection (c), allowing the Superintendent to set other rates for late fees and allowing the Osage Minerals Council to waive late fees, with approval by the Superintendent.
In Section 226.27(a), the Department added that royalty payments on division orders or contracts must be made in accordance with Section 226.25, since it is Section 226.25 that governs payments of royalties and all leases are subject to the regulations. And, in subsection 226.27(b,) the provision allowing the Superintendent to authorize extensions was deleted in order to reduce the considerable administrative burden on the Superintendent of having to consider requests for extensions on a case by case basis.
The Department added provisions in 226.29 to clarify liability for wells and related facilities once a lease is assigned. The Department found that there has been a concern both by surface owners during the negotiated rulemaking and the Office of Inspector General with respect to the abandonment of wells within Osage County. The new provisions regarding liability will provide additional protections for enforcement after a lease is assigned and provide greater clarity and transparency regarding lessee obligations.
In 226.34, the Department added a new provision making clear that NEPA and the National Historic Preservation Act (NHPA) continue to apply within
The Department amended Section 226.52 to allow for the permanent abandonment of a well upon a showing that the well is no longer producing in paying quantities, rather than a showing of its lack of further profitable production of oil, because the standard for showing that a well is no longer producing in paying quantities is more objective, less administratively burdensome to determine, and consistent with the standard applied with respect to Indian leases outside of Osage County.
During the negotiated rulemaking it was explained that the United States was sued by the Osage for breach of trust with respect to management and administration of the Osage minerals estate. The United States settled with the Osage for $380 million and, as part of the settlement, agreed to engage in a negotiated rulemaking to revise the regulations governing Osage in order to improve the management and administration of the minerals estate. Further, not all of the regulations are being revised. To the extent that some of the regulations are revised, the Department acknowledges that there may be some additional upfront costs to ensure compliance with the regulations. However, the regulations are necessary to improve management and administration of the Osage mineral estate. Overall, given the Osage tribal trust litigation and resulting settlement, the Department had to balance the need to ensure that the regulations fulfill the United States trust responsibility to the Osage with some potential increased costs to industry. Moreover, this Rule brings Osage closer in line to how oil and gas operations are regulated on other Indian and Federal lands and reflects the availability of new technology and improved industry standards since the regulations were initially promulgated.
These comments do not relate to the rule but to internal agency operations that are outside the scope of the rulemaking. However, the Osage Agency developed a staffing plan in 2013 to address concerns regarding lease enforcement and compliance issues. The Osage Agency requested additional funding as part of its Fiscal Year (FY) 2014 and 2015 budgets, which will be incorporated into its base funding for the FY 2016 budget cycle. The Osage Agency has also created 13 additional positions for inspections, enforcement and lease compliance, lease management and oil and gas accounting. While compliance with the regulations may result in some additional upfront costs to both industry and the Bureau, the majority of the new regulations address shortfalls that resulted in the Osage's lawsuit against the United States for breach of trust related to mismanagement of the Osage minerals estate, including royalty collection, auditing, accounting, record keeping, inspections and lease compliance. There was also no evidence presented to show that finalization of the rule would negatively impact royalty payments, rather the rule has increased protections for ensuring royalty collection and provisions to ensure that lessees are calculating royalty in a manner that minimizes third party manipulation.
These comments relate to agency operations and implementation and do not relate to any particular regulation. The Department agrees that management and enforcement of the regulations is key and has worked over the last few years to address staffing concerns and budgetary limitations at the Osage Agency.
The Department does not believe it is necessary to restart the negotiated rulemaking process. Formation of the Negotiated Rulemaking Committee was first announced in the
The Department acknowledges that some of the new provisions in the regulations are modeled after existing Federal regulations governing oil and gas on other Indian and Federal lands governed by BLM. However, under the rule, BLM is not delegated with the responsibility for oil and gas operations within Osage County. Rather, BIA has that responsibility. Additionally, it is relevant to note that some commenters noted their disagreement with the form letters submitted opposing the proposed regulations.
The United States holds the Osage mineral estate in trust pursuant to the Act of June 28, 1906 § 3, 34 Stat. 539, 543–44, amended in relevant part by Act of March 2, 1929, 45 Stat. 1478 (extending restricted trust status of mineral estate to 1959); Act of June 24, 1938, 52 Stat. 1034 (extending restricted trust status of mineral estate to 1983); Act of Oct. 21, 1978, 92 Stat. 1660 (extending restricted trust status of mineral estate in perpetuity). Thus, the United States, through the Department, has a non-delegable fiduciary obligation to manage the mineral estate for the benefit of the Osage. It is relevant to note that one commenter disputed the assertion that the State is better equipped to address oil and gas leasing in Osage County and explains that the Osage Nation and the United States have more experience and knowledge in administering and enforcing oil and gas leases in Osage County. The first lease in Osage County was developed in 1896, eleven years before creation of the State, and the United States has regulated and managed the Osage mineral estate since 1896.
This is a legal issue outside the scope of the rulemaking. The Department does not need to address the impacts, if any, of the
This comment does not relate to the revised regulations and is outside the scope of the rulemaking process. It is relevant to note that one commenter disagreed with the request for a cooperative agreement that gives the State administrative jurisdiction in Osage County and cites, 25 U.S.C. 1a & 9, noting that Congress granted authority over Indian Affairs to the President. This commenter also cited 25 CFR 1.4(a), for the proposition that the President, acting on his authority, has specifically excluded States from exercising jurisdiction over Indian property, including Indian water rights; and further cited legal precedent for the proposition that the Department cannot delegate authority to a State without tribal consent and the Osage Nation has not consented to such jurisdiction or delegation.
This comment does not relate to the revised regulations and is outside the scope of the rulemaking process. The United States holds the Osage mineral estate in trust under the Act of June 28, 1906, § 3, 34 Stat. 539, as amended, and the revised regulations only pertain to the United States' responsibilities to the Osage as defined in that Act. The 2004 Act, Public Law 108–431, 118 Stat. 2609 (Dec. 3, 2004) speaks to tribal membership issues for purposes other than those defined by the 1906 Act.
Pursuant to the Osage Tribal Trust Settlement, the Bureau is required to consult twice annually with the Osage Minerals Council, the duly elected governing body within the Osage Nation that oversees the Osage mineral estate. Throughout the Negotiated Rulemaking Process, the Bureau held its required consultations to discuss the rulemaking process and other issues with the Osage Minerals Council. During those meetings a tribal representative of the Nation was invited and present. Additionally, the Negotiated Rulemaking Committee was comprised of duly appointed members of the Osage Minerals Council.
These comments are not within the scope of this rulemaking. However, as an operational matter, the Bureau is exploring opportunities to make oil and gas operations more transparent by possibly developing a Web site that would contain pertinent information, consistent with the Freedom of Information Act requirements, with regards to oil and gas activities within the Osage County.
This comment is outside the scope of the rulemaking. The Osage Agency regularly provides detailed information regarding the Osage mineral estate to the Osage Minerals Council on a regular basis and, consistent with the Freedom of Information Act, headright holders may request information relating to the Osage mineral estate from the Osage Agency.
This comment is outside the scope of the rulemaking process. The Department notes, however, that the Office of Inspector General (OIG) issued a publicly available report on the Osage Agency in October 2014 (No, CR–EV–BIA–0002–2013). That report states that the Osage Agency needs to institute substantial changes to improve the management and administration of the Osage mineral estate, and further provides that many of the OIG's proposed recommendations and concerns will be addressed upon finalization of this rule.
This comment is outside the scope of the rulemaking. Moreover, STRONGER is an organization that focuses on State, not Federal, reviews of oil and gas regulations and best management practices. As noted in response to other comments, the Department's OIG has recently performed an audit of the Osage Agency and has issued a public report providing specific recommendations to improve management and administration of the Osage mineral estate. That report notes that many of the areas in which improvement is needed will be addressed upon finalization of this rule, and other issues are being addressed operationally. In addition, the Negotiated Rulemaking Committee was comprised of a team of experts in all fields of Federal oil and gas operations (BLM, Office of Natural Resource Revenue (ONRR), BIA, and the Office of Indian Energy and Economic Development) to evaluate Osage Agency operations and to make recommendations for improving the management and administration of the Osage mineral estate.
This comment is outside of the scope of the rulemaking; however, the Department provides the Osage Minerals Council with a periodic statement, at least on a quarterly basis, that provides information regarding the source, type, and status of the funds in the mineral estate account, the beginning and ending balance for the period reported, all gains and losses in the account and all receipts and disbursements for the account.
The Secretary, not the Osage Minerals Council, has been delegated the authority to manage the Osage mineral estate by Congress. Thus, while the Bureau is willing to consult with the Osage Minerals Council on matters relating to the Osage mineral estate, it must retain its ability to take corrective actions against lessees that are in violation of the regulations, including termination of the lease after consultation with the Osage Minerals Council (Sections 226.25(c), 226.62(b)–(c), 226.63(c), 226.67, and 226.70). In addition, the Department must retain the discretion to make changes to the regulations in the future.
The phrase commented on is in the Executive Summary of the Rule that was proposed in the
The rule does not define “headright holders” and the Department does not believe it is necessary to define this term because it is defined in the 1906 Act. Moreover, the distinction made by the commenter is not relevant to the rule. The rule only relates to the Osage mineral estate as defined in the 1906 Act and not to other purposes.
The Department believes the current definition of Osage Minerals Council in the Rule is consistent with this comment and reflects that the Osage Minerals Council is a duly elected governing body within the Osage Nation.
The Department does not believe that there is a need to further expand the definition. “[F]or which there is a market” was intended to be left sufficiently broad to mean any market which there is a demand that makes it economically feasible to develop the non-hydrocarbon.
Royalty is not defined in the definitions section of the rule, but is defined by the amount a lessee must pay on the amount of oil, gas, or other marketable product sold in accordance with Sections 226.18 through 226.23. Other fees paid under the regulations are for administrative costs or expenses.
The Department does not believe that this level of specificity is required or necessary. The 1906 Act delegated to the Secretary of the Interior the responsibility to manage and administer the Osage mineral estate and such delegations are governed by applicable authority, including the Departmental Manual. If the Secretary delegates a specific duty to the Superintendent, the Superintendent may only further delegate that responsibility in accordance with the Departmental Manual. Further, to the extent that the Secretary delegates certain responsibilities to the Superintendent, those delegations may be changed by the Secretary, and this authority is expressly retained in the definition of “Superintendent” in Section 226.1.
No changes were made in response to this comment. The question of the Superintendent's authority to delegate is not controlled by the regulation but is an independent question of Federal authority. The Superintendent can only make delegations consistent with applicable authorities including Departmental Manuals.
In response to this comment, a definition of “surface owner” was added to Section 226.1 to include “any person or entity that owns a surface estate within Osage County, irrespective of whether the surface estate is held in fee, restricted fee or trust status.”
The definition of “waste of oil or gas or other marketable product” must be read in conjunction with Section 226.21, which specifies who makes a determination regarding royalty payments for lost or avoidably wasted materials. Section 226.21 allows the lessee to submit information in support of his/her position that gas was not wasted or avoidably lost before a finding is made. This provision ensures that the Superintendent has all relevant information from the lessee before making a final decision. In addition, during the Negotiated Rulemaking when this provision was discussed by the Committee and the public, it was noted that the Superintendent's decision is subject to appeal under 25 CFR part 2.
The reference to the Osage Nation in the definition of Osage Minerals Council is an accurate reference because the Osage Minerals Council is a duly elected governing body within the larger Osage Nation. Only Osage headright holders are eligible to vote for candidates for the Osage Minerals Council.
Section 226.3 allows the Bureau, in consultation with the Osage Minerals Council, to adopt BLM onshore oil and gas orders, notices to lessees or related onshore oil and gas regulations, but does not require adoption. Prior to adoption, the Bureau must comply with the Administrative Procedure Act. This rule does adopt two BLM onshore oil and gas orders that relate to the measurement of gas in Section 226.63(a), and hydrogen sulfide in Section 226.60(f), but neither of these relate to the drilling permit process. Moreover, while Section 226.34 (previously numbered Section 226.16), which relates to drilling permits, was amended to expressly provide that National Environmental Policy Act and the National Historic Preservation Act apply, those statues are already applicable within Osage County. The amendment only makes clear that lessees must submit certain environmental information to assist the agency in complying with those laws. To the extent that the comment could be interpreted to imply that Section 226.60 (previously numbered Section 226.36) is revised to add requirements regarding well safety, those requirements were adopted from the BLM regulations, but do not impact the drilling permit process. It is also relevant to note that the rule does not become effective until 60 days after publication and the Bureau is working on a plan to educate lessees in Osage County regarding the changes to the regulations to ensure compliance and understanding of any new requirements before the rules go into effect.
The Negotiated Rulemaking Committee reviewed all of the BLM's onshore orders and after much discussion and public comment only recommended adopting Orders 5 and 6. However, the Committee recommended, and the final rule adopts the recommendation, that the Bureau be expressly provided the authority to adopt other onshore oil and gas orders in the future. The requirement that the Bureau consult with the Osage Minerals Council prior to any such future adoption is consistent with Executive Order 13175 on tribal consultation. In addition, the Bureau must comply with the Administrative Procedure Act in adopting any future onshore oil and gas orders.
The rule already adequately addresses this comment, however, an additional change was made to Section 224.44(e) to further address this and other comments related to safety and the environment. For example, in addition to Section 226.4(a)(10), the rule has specific protections against hydrogen sulfide gas in Section 226.60(f), which was added during the negotiated rulemaking process to address concerns from the public regarding the existence of hydrogen sulfide within Osage County. Section 226.44 also provides additional requirements with respect to the lessee's obligations for preventing pollution and an additional provision was added for safety, to require fences around pits and tanks and that removal and remediation of tank and pit sites occur immediately after completion of operations. Section 225.45 provides additional requirements with respect to other environmental responsibilities. These are just some of the provisions that ensure lessees take steps to protect the environment and ensure public health and safety.
The Department agrees that written orders are preferable and has removed
To the extent that these comments relate to the rule, they are already addressed by the rule. In Section 226.4(c), leases with a history of noncompliance must be reviewed at least once annually. The Bureau has also established a toll-free 24 hour hotline (855) 495–0373 for reporting spills or accidents and a tracking system has been created to ensure that all calls are responded to in a timely manner and other officials are notified as appropriate. The Bureau has also discussed creating a Web site for the Osage Agency where it can post the results of investigations and other information related to oil and gas operation in Osage County. However, this is being done outside the rulemaking and any information posted must be reviewed for compliance with the Freedom of Information Act. Additionally, the Office of Inspector General (OIG) issued a publicly available report on the Osage Agency in October 2014 (No, CR–EV–BIA–0002–2013) that discovered some of the same concerns, but many of the OIG's proposed recommendations and concerns will be addressed upon finalization of this rule. The Bureau is also making a number of operational changes that are discussed in that report in order to strengthen the management and administration of the Osage mineral estate.
Congress has recognized that Indian tribes and their members should have direct involvement in federal programs enacted for their benefit. Under 25 U.S.C. 472, Congress recognized that Indians should be involved in the day-to-day operations affecting them and the Bureau of Indians Affairs must apply Indian preference to positions open in the Osage Agency. The Department is not persuaded by the assertion that Osage headright holders who may be employed by the Osage Agency will refuse to enforce regulations simply to advance their alleged personal self-interests. In any event, employees are accountable to their supervisors and ultimately to the Secretary. If there are issues with non-compliance, members of the public may contact the Department to report such violations.
This comment is adequately addressed in the rule. The Negotiated Rulemaking Committee agreed in response to similar public comments raised in the negotiated rulemaking process that surface owners should have access to information regarding whether an oil and gas lease covers their surface estate. Thus, as proposed and adopted in the final rule, Section 226.5(c) requires that the Superintendent post at the Agency, within 30 days following approval of a lease, a legal description of the mineral estate that was leased. This ensures that surface owners have access to information regarding lands leased, while reducing the burden of the Osage Agency in locating and notifying each individual surface owner.
In response to this and other comments concerning abandoned and unplugged wells, the Department has added a paragraph (c) to Section 226.6, to require the Superintendent to ensure that the lessee has either plugged all wells and reclaimed the surface, in accordance with the regulations, or show in writing that upon surrender the future liability for all wells located within the lease or portion of the lease to be surrendered has been transferred to another party.
The Department does not believe a change in the rule is needed to address this comment. Section 226.8 has only been renumbered in the rule (previously numbered as Section 226.7). That provision specifies that amendments or changes to the regulations cannot change the terms of pre-existing approved leases with respect to the term of the lease, rate of royalty, rental or acreage, unless otherwise approved of by the parties and the Superintendent. Thus, the rate of royalty in pre-existing approved leases will not change as a result of the rule, but the provision describing how royalty is calculated (
The Department agrees with this comment and has added the provision allowing nationwide bonds back into Section 226.9 of the rule.
The Department disagrees with this comment and in reviewing the record has found that there is a need for increased bonding. The Department
The Department believes that the rule sufficiently balances the need for increased bonding with the fact that bonding is only for insurance purposes and does not eliminate the lessee's obligations to plug abandoned wells and remediate surface lands in coordination with surface owners. Bonding is only intended to provide assurances to the Bureau that the lessee has incentive to plug a well and is not intended to create complete upfront funding for the plugging of a well at an unknown time in the future. Nor is bonding intended to cover surface remediation. To the extent that a surface owner is unsatisfied with remediation on the part of a lessee, he or she may seek damages in accordance with Sections 226.40–41, or pursue any other legal remedies available to him or her. The Department found that the Committee considered, but rejected after substantial public comment in opposition, the notion to require bonding at 125 percent the cost of plugging a well.
The Department has concluded that it is necessary to make changes to bonding with Osage County and there have been historical problems with adequate bonding in Osage County as found in the recent report issued by the OIG in October 2014. The Department found that the issue of bonding was discussed throughout the negotiated rulemaking process and that members of the Committee and the public noted that the current rate of bonding does not relate at all to the fact that costs for plugging occur on a per well and not per lease basis. Moreover, members of the public have commented that they believe there is a problem throughout Osage County with abandoned and unplugged wells and current bonding rates were not sufficient to address or encourage remedying these issues. Thus, the Department believes that it is reasonable to adopt the revised bonding amounts proposed by the Negotiated Rulemaking Committee to better relate bonding to the cost of plugging a well and incentivize lessees to plug wells that will no longer be used so that they can get a release of their bond. The rule also provides new provisions for ensuring that the Bureau releases bonds in a timely manner.
The Department does not believe that the rule will make it more difficult to obtain oil and gas lease bonds. Moreover, while the amount of bonding has increased, the rule caps the amount of the increased bond to a maximum of 25 wells. The rule allows for different ways to acquire a bond, including the ability to obtain a surety bond that meets the requirements of the rule, and the Department has further revised the rule to allow nationwide bonds, which are accepted elsewhere on other Indian and Federal lands. While the Department understands that there may be some lessees that for various reasons may not be able to get a bond, the Negotiated Rulemaking Committee discussed that some of the issues related to those failures were due in part to defaults caused by particular lessees and are not attributable to the cost of bonding. Bonding is a requirement throughout the oil and gas industry and those who want to engage in oil and gas operations must expect to be required to provide assurance that they will properly plug and reclaim their well sites.
For many of the reasons addressed in other responses to comments on bonding, no additional changes are necessary in response to this comment. In addition, the unused and unplugged or abandoned wells do pose a threat to the environment such as possible pollution of fresh water formations due to migration of oil, gas, saltwater and other substances. For example, abandoned wells can provide pathways for oil, gas or brine-laden water to contaminate groundwater supplies or to travel up to the surface due to the deterioration of the casing or surface equipment deterioration or malfunction. If the production is insufficient to cover the cost of bonding, the Department is concerned that the production will also be insufficient to cover the cost of plugging and reclamation. Thus the increase in surety amounts will help ensure the operator's diligence in plugging and abandoning and reclaiming the surface.
This comment is already addressed by the rule, which does provide a cap for bonding in Section 226.9(c) at $5,000 per well for a maximum of 25 wells per lessee for all leases held within Osage County. Additionally, in response to public comment, the rule was further revised to allow nationwide bonding.
The Department disagrees with this comment because it is generally accepted within the oil and gas industry that bonding is for insurance purposes and is not intended to cover the entirety of the costs associated with plugging and remediation of every well site, rather bonding provides an incentive to perform plugging and remediation of well sites and screens out unreliable lessees who fail to perform these duties because lessees that default on their responsibilities will not be able to get a bond in the future.
No changes to the rule are necessary with respect to this comment. The Oklahoma Energy Resources Board (OERB) does not bond or plug wells. The OERB is a State-incorporated surface restoration agency that lessees in the State of Oklahoma voluntarily contribute to for remediation and reclamation of abandoned well sites at no cost to surface owners. The Bureau has met with OERB and confirmed that OERB has historically been willing to operate within Osage County and currently works with surface owners and the Bureau for Remediation within Osage County in accordance with its normal process and procedures. The goal of the regulation is to prevent orphan wells that will further burden OERB and the responsible operators who fund it.
This is an issue that cannot entirely be addressed in the regulations, which govern on-going oil and gas operations. The Department recognizes that there is an issue with respect to abandoned wells within Osage County and works with the Osage Minerals Council to address these issues. The Osage Minerals Council has contracted with the Bureau to take over the function of plugging orphaned or abandoned wells and currently operates the program within Osage County. In addition, as mentioned in previous responses, OERB operates in Osage County to remediate the surface area around orphaned or abandoned wells that have been plugged. To the extent that this issue can be remedied in the future by the rule, the Department has increased bonding to more closely relate to costs associated with plugging a well and reclamation (on a per well basis) to provide an incentive to ensure lessees properly plug and abandon wells and has also added a provision, Section 226.6(c), requiring that before a lease can be surrendered or partially surrendered, the lessee retains any past liability incurred within the lease or partial lease to be surrendered, and must show that he has either properly plugged and abandoned all wells and/or that another party is taking full legal liability for the wells within the lease or partial lease to be surrendered. In addition, a new provision was added as Section 226.29(a)(i), clarifying that the assignment is subject to the continuing obligations of the assignor to meet its plugging and abandonment obligations, and a new Section 226.29(a)(ii) was added making clear that the assignee retains all responsibility for all unplugged wells under the lease or partial lease assigned.
The Department does not believe this is an issue within the scope of the rulemaking. The regulations govern on-going oil and gas operations. To the extent that there are historical issues with respect to abandoned wells and well sites, the Department can explore with the Osage Minerals Council whether or not a voluntary fund could be established to address the historical issues. The Department also reiterates that as stated in responses to other comments, OERB does operate within Osage County to remediate abandoned well sites and the Osage Minerals Council currently operates the program for plugging abandoned wells.
In response to comments, the Department has further revised the rule to change the time period for termination for non-production from 90 days to 120 days and require that requests for extension of time be submitted at least 20 days prior to expiration of the 120-day period, but given the additional time for non-production and the need to reduce administrative burdens in enforcing this provision, the Department deleted the provision allowing the Superintendent to waive the 20 days advance notice requirement. For clarification purposes, the Department also added a standard for extending temporary suspensions to require good cause. The Department found that there was substantial discussion on this issue during the negotiated rulemaking and the Osage representatives on the Committee were opposed to allowing nonproduction for periods of 180 days or more. Although the Osage representatives on the Committee also rejected a 120-day timeframe during the negotiated rulemaking process, the Department had to balance the concerns of the Osage representatives with the concerns of the lessees regarding operation contingencies and its ability to administratively manage leases for nonproduction. The Department did not view as relevant, concerns that a lessee may have another job that inhibits his or her ability to produce within a particular timeframe or concerns that a particular lessee may not be able to afford equipment or staff because Section 226.14(c) states that all lessees have an obligation to diligently develop their lease. The Department also found that concerns regarding the ability to put a well into production were misplaced because Section 226.14(e) only contemplates termination for nonproduction after the primary term of the lease when the lessee is expected to begin production.
No response is necessary to this comment because it is not substantive and does not provide any recommendations.
This comment misinterprets Section 226.14(e), which does not provide that wells that are producing in paying quantities would be terminated for nonproduction within the prescribed timeframe. It is understood that sales are intermittent in nature and that a well may be producing but that a sale may not occur within 90 or 120 days. So long as the lessee reports production, the lease will continue, it is only the failure to produce, not the failure to sell, that terminates a lease under this provision. The regulations, however, expressly provide that all lessees have an obligation to diligently develop their leases as set forth in Section 226.14(c).
This comment does not accurately characterize Section 226.14(a). Section 226.14(a) requires a lessee to place a well in production within the land embraced by a lease within 12 months of the date of approval of the lease, or as otherwise provided for in the lease terms, but does not require a lessee to drill in every quarter section. A lease may encompass an entire quarter section or a larger land area. Lessees are required to act prudently in addition to diligently developing the mineral estate. The rule also includes provisions to ensure that lessees conduct all operations in a manner that protects other natural resources, environmental quality, life and property.
The Department disagrees with this comment. The Osage mineral estate is held in trust by the United States and was reserved by the United States for the purpose of mineral development. The rule also does not change the basic premise of law that a surface estate is subservient to a dominant mineral estate. The rule recognizes that a lessee is permitted to use as much of the surface estate that is reasonable for operations.
Under the 1906 Act, the mineral estate is held in trust by the United States for the benefit of the Osage. However, the drainage provision in the Rule is intended to ensure diligent development of all lease sites because not all leases have the same royalty rate. Thus, if a lessee holds multiple leases next to each other, the drainage provision will ensure that the lessee is not able to focus drilling only the lease site that has a lower royalty rate to the detriment of the Osage. However, to further clarify the provision and reduce the burden on lessees, subsection (b) was revised to clarify that drainage does not occur if the lessee can show that it could not produce a paying quantity of oil or gas “for a reasonable profit”, rather than “in paying quantities.” Usually “in paying quantities” only means enough to recover day to day operational costs. Subsection (d) was also amended to clarify that an assignee is responsible for drainage even if it would not be economic, at the time of assignment, to drill an offset well, to ensure that the Osage are protected if a lease is assigned. The Department also notes that 226.16(d)(1) is intended to clarify that a well drilled to protect against drainage must be in continuous production and the obligation to pay compensatory royalty can be revived if the protective wells cease production.
In the Osage Tribal Trust Settlement, the Department agreed to engage in a negotiated rulemaking and, among other things, identify appropriate revisions to the methods for calculating royalty for oil and gas. The Negotiated Rulemaking Committee reviewed various indices to utilize for calculating royalty. The Committee sought a price benchmark that (1) was appropriate for oil sold in Osage County, (2) accurately reflected the oil market in Oklahoma, (3) was widely published, and (4) independent. The committee found that NYMEX was the only benchmark that met all four criteria. After public comment, the Committee decided to propose NYMEX at Cushing, Oklahoma, as the index for calculating oil royalties. The Bureau had the ONRR review and evaluate NYMEX
The Department agrees that there is merit to the use of WTI as the pricing benchmark for Osage oil. That was considered during the sub-committee evaluation of the various benchmark options. Use of WTI was ultimately rejected by the Committee because it would require location differential pricing and transportation adjustments that did not satisfy the request for simplicity and the need to minimize administrative burdens. Furthermore, WTI did not mirror the Oklahoma market as well as NYMEX settlement at Cushing. Benchmarks based on weighted average prices of arms-length transactions in a given market area are generally considered a fair representation of market value. Terms that require “the highest rate the market will bear” are, by their very nature, dismissive of transactions that occur below that threshold. As such, they would be unfair to parties that are able to negotiate satisfactory arms-length agreements below “the highest rate the market will bear.” Pricing based on such terms would not be considered fair market value.
The Bureau had the ONRR review and evaluate NYMEX at Cushing, Oklahoma, to determine whether it was an appropriate market center for Osage County. The ONRR's report recommends using NYMEX at Cushing based on its review and analysis of price data from Osage County and ONRR's experience in using this process for Federal oil valuation. The ONRR also found that because Osage County is so close to Cushing, Oklahoma, adjusting NYMEX for location is unnecessary. The ONRR recommended against allowing transportation deductions and noted that eliminating transportations deductions would: (1) Increase revenue to the Osage, (2) reduce litigation costs to the Tribe and industry, (3) provide certainty to the industry and assure more contemporaneous compliance and (4) reduce administrative costs to the Federal government and the industry. Based on those recommendations and the Bureau's desire to reduce administrative costs while at the same time fulfilling its trust responsibility, the Department decided against allowing transportation allowances. The Department also found that there was discussion of whether to allow transportation allowances during the negotiated rulemaking, but the Committee also chose not to allow for such deductions for a variety of reasons, including the difficulty in developing a simple formula and the administrative burdens of enforcing accurate transportation deductions.
Section 226.18(c) was previously numbered as Section 226.11(a)(3), and has not been revised through this rulemaking. No further changes are necessary to this provision at this time and the Department has not been provided with sufficient information to reasonably support a change.
No changes are necessary in response to this comment because actions of the Department must comply with the Administrative Procedure Act. Moreover, it is uncertain whether or not the Superintendent would publish new gravity adjustments in the future or what process the Superintendent would follow to do so. If and when that occurs in the future, any final decision may be challenged in accordance with the Administrative Procedure Act.
It is unclear whether this commenter was referring to deductions for oil (Section 226.19) or gas (Section 226.20). Regardless, the only deduction allowance for royalty paid on oil is based on a gravity adjustment.
The Department is confused by this comment because nowhere does 226.20 state that gas volumes must be determined prior to removing water vapor. It is assumed that the commenter was actually referring to 226.20(b). The requirement in 226.20(b) was added to prohibit adjustment to the measured volume of gas for assumed water vapor content. This requirement does not prohibit the physical removal of water vapor or placing the gas into marketable condition prior to measurement, however. We agree with the commenter that the wording was unclear and have changed the wording in 226.20(b) to clarify this and have also added specific technical requirements that were previously missing to address calculating the heating volume of gas to aid the lessee in complying with this section.
The Department disagrees with this comment. The Department did find that the reference for dual accounting in the proposed rule (30 CFR 1206.173) was incorrect and has added the correct reference (30 CFR 1206.180(a)–(b)). However, the purpose of the provision is so that if the actual reasonable cost of processing as required by this section cannot be determined, the lessee is required to perform the accounting for comparison (dual accounting) as outlined in 30 CFR 1206.180(a)–(b). On other Indian and Federal lands outside of Osage County, approval for the alternative methodology rests with ONRR, not the tribe. In Osage County, unless otherwise delegated, ensuring compliance with those same provisions is now vested in the Superintendent because this rule makes them applicable to Osage. In all cases, the application of alternative methodologies for accounting are directly tied to the lack of transparency of processing costs and an inability to determine those costs for allowance purposes. The requirement does not interfere with any agreements the lessee has or will make.
Section 226.20 requires only that all gas
The Department is not certain it understands this comment, but notes that the determination of royalty on other marketable products is explained in Section 226.23, which is a provision that was contained in the prior regulations, but revised in the final rule to clarify that royalty due on other marketable products is in addition to any royalty that may be due on oil and gas in accordance with the regulations.
The due date for royalty was changed to make it consistent with the date that royalty payments are due to the ONRR, in the event that the Secretary delegates royalty collections and audits to ONRR to aid the Bureau in its management and administration of the Osage mineral estate. ONRR has the capacity to provide assistance to the Bureau without the Bureau having to duplicate services that ONRR already provides on other Indian and Federal lands.
Section 226.27(a)(2) was not substantively changed through this rulemaking, but was renumbered (from Section 226.14(a) in the old regulations to Section 226.27(a)(2)) and reformatted for readability only. Issues relating to staffing and funding are also outside the scope of this rulemaking, although the Bureau has worked with the Osage Agency over the last few years to address budget shortfalls and staffing needs.
The regulations have always required lease assignments to be approved by both the Osage Minerals Council and the Superintendent. This rule does not change that requirement, but deletes the provision allowing lessees to assign separate horizons because the Department found, in reviewing the rule, that such assignments do not generally occur at Osage and when they did, they were so administratively burdensome that the Agency could not
This comment is already addressed in Section 226.33 of the final rule, which requires that lessees conduct all operations in a manner that protects other natural resources and environmental quality and protects life and property while also balancing those responsibilities with the requirement to maximize production of oil, gas and other marketable products. Sections 226.44–226.45 also provide additional protections for the prevention of pollution and environmental concerns and were added in response to similar concerns raised during the negotiated rulemaking process. To the extent that the commenter desires the Bureau to develop best management practices outside the regulations, those comments are beyond the scope of the rulemaking. However, the Bureau is currently engaged in a process with the U.S. Environmental Protection Agency (EPA) to revise and update an existing Osage Lessees Manual that addresses environmental protection and response, including best management practices. The Osage Minerals Council, Osage Nation, State of Oklahoma, lessees, and surface owners were involved in the public listening sessions as part of that process. Moreover, the rule does not replace other applicable environmental laws or regulations and EPA is responsible for overseeing certain aspects of oil and gas operations within Osage County.
Notwithstanding the regulations, the Bureau is required to ensure compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321
Section 226.35 (previously numbered 226.17) was not substantively changed in the rule. References to the “Osage Tribal Council” to the “Osage Minerals Council” were changed because the Osage Tribal Council no longer exists and it is the Osage Minerals Council that oversees the Osage Mineral Estate. Moreover, Section 226.35 governs the use of restricted homestead and not all surface lands within Osage County. The Bureau has a unique role with respect to operations that occur on a restricted homestead and this section ensures that the appropriate procedures are followed to enable the Bureau to participate in a decision impacting the restricted homestead in order to protect the restricted surface owner to which the United States has a trust responsibility, but those provisions do not change the legal principles related to the surface and subsurface mineral estate that are applicable in Osage County.
No change has been made in response to this comment. Section 226.36 only relates to commencement of operations, and Section 226.33 of the rule provides that lessees are required to comply with all applicable laws and regulations, including protecting natural resources and environmental quality, and life and property during their operations. To the extent a surface owner believes that a lessee is engaged in operations that are harmful to the health and safety of humans, such actions should be reported immediately to the proper authorities and the Bureau maintains a 24-hour hotline for such purposes.
In response to comments, we have further revised Section 226.36(b)(2) to allow both the surface owner and the lessee to meet with and submit information regarding such routes before a final determination is made. This will allow for the consideration of relevant parties before making a determination, which provides added protection for all parties.
No change has been made in response to this comment. A particular lease could include multiple tracts of land that are owned by different surface owners and the owners of each surface
Section 226.36(a) already requires the lessee to notify or attempt to notify surface owners prior to commencement of certain operations and Section 226.36(b) requires that lessee request a meeting with surface owners to provide information regarding location of wells, route of ingress and egress and contact information for damage claims. In response to comments, however, the Department has added a requirement to Section 226.36(b)(2), which requires that in the event that the surface owner and lessee cannot agree on a route of ingress or egress, both the surface owner and the lessee will be notified by the Superintendent and provided with an opportunity to meet and/or to submit any information in conjunction with that process. In addition, Section 226.37, governing use of surface lands, already provides standards for surface use without the need for an additional requirement of surface use plans between the surface owner and lessee. The rule has always implicitly provided that the lessee and surface owner should work together regarding locations of well pads, roads, pipelines and electric lines and expressly provides a process for the routing of rights-of-ways including, for example, pipelines and electric lines, in the event that the surface owner and lessee cannot agree on a particular route. However, in response to comments, the Department has also added a requirement to Section 226.37(a) (similar to Section 226.36(b)(2)) to provide that the Superintendent will notify or attempt to notify both the surface owner and lessee and provide them with an opportunity to meet and/or to submit any information in conjunction with that process. In addition, Section 226.38 provides limitations regarding the size of drilling sites that lessees must follow in conducting operations.
The rule sufficiently addresses this comment without requiring a change to Section 226.37(c). Section 226.37 governs the use of surface lands generally, but is not the only provision in the regulation regarding a lessee's duties and obligations. Section 226.33(a)(2)–(3) already requires that that the lessee conduct operations in a manner that protects other natural resources and environmental quality and that protects life and property. Section 226.44 further specifies requirements that lessees must follow to prevent pollution, and Section 226.45 delineates lessee's other environmental responsibilities. In addition, Section 226.46 provides that a lessee must perform all operations and maintain equipment in a safe and workmanlike manner and take all precautions necessary to provide adequate protection for the health and safety of life and the protection of property.
Commencement money is not intended to compensate surface owners for all damages to land as a result of oil and gas operations. Rather, it is intended to provide an upfront payment to surface owners that will be credited towards future damages. The rule has a process in Section 226.40, by which surface owners may seek additional damages. A number of commenters also raised concerns that increased commencement fees would be overly burdensome to smaller lessees. However, the commencement fees are intended to provide all surface owners, regardless of whether the lessee is a small or large producer, with the same up front compensation for the initial use of surface lands. During the rulemaking the Committee heard from many surface owners that the amount of commencement money was inadequate to the surface cover damage the surface. Thus, there is a need to balance these concerns while ensuring that surface owners are treated equally and receive some measure of compensation before they are able to recover damages for actual impacts to the surface as a result of oil and gas operations. An increase in commencement fees in conjunction with the ability of surface owners to continue to recover full damages strikes this balance.
Section 226.38 governs commencement of operations and provides that a lessee may commence operations, including seismic activities, once the commencement fees are paid in accordance with that section. This section in particular, has been revised from the previous regulations to increase the fees in response to surface owner comments during the negotiated rulemaking process, but the majority of the section was not revised. The Department found that there was discussion during the negotiated rulemaking with respect to the concept of requiring some kind of a surface use agreement before operations could begin, but ultimately the Committee did not propose that approach. Based on the record, the Department believes the rule contains sufficient standards governing the use of surface lands (Sections 226.36(b) & 226.37), including provisions aimed at ensuring that surface owners are notified of operations (Section 226.5(c); Section 226.36; 226.38(b)) and have the opportunity to participate in the process where applicable.
Oil and gas operations within Osage County are governed by federal law, including the 1906 Act and its implementing regulations. Under the rule, Section 226.38 requires commencement fees, rather than a surety performance bond, be paid to surface owners before operations may begin. During the negotiated rulemaking in response to public comment, the
No evidence was submitted to support this comment. Further, this issue was discussed during the Negotiated Rulemaking Committee and this change was made in response to surface owner complaints regarding damages and lessee complaints regarding access. In particular, the Negotiated Rulemaking Committee explained that the increase in the commencement fee from $300 to $2,500 was made because $300 is an outdated amount and is creating development issues between the surface owners and lessees, as evidenced by the recurring issue in Osage County of surface owners blocking lessee access to lease sites because they believe the commencement fees are insufficient. Thus, the Committee increased the commencement fee to $2,500 to help mitigate this issue and believed it is a fair amount that would be applied to future damages, while at the same time balancing concerns of surface owners who are concerned about immediate damages to their surface estate. Committee members agreed that this fee should be paid before beginning operations, not at the time of permitting.
Commencement money is not intended to cover fees for the siting of tanks. At the time that a lessee commences operations, he or she may not know how many tanks will be sited on the well site. Section 226.39 provides that when a tank is sited on a well site, the lessee will pay the requisite fees in accordance with that section. This provision ensures that the surface owner will be compensated for the siting of a tank at the time they are placed on a well site, while allowing the lessee to begin operations after the payment of commencement fees and before he or she may know how many tanks will be placed at the well site.
Section 226.40(a) was not changed substantively from the prior regulations (original 226.20(a)). Moreover, this comment contradicts the purpose of the damage provisions in the rule, which are intended to be broad enough to cover any claims for damages that a surface owner may have against a lessee. The provision is not intended to take a position on whether a particular claim for damages does or does not have merit, but allows for such issues to be worked out between the surface owner and the lessee.
For the reasons stated in responses to other comments, the rule does not require a surface use agreement. The rule does provide for a surface owner to be compensated for damages as a result of operations and arbitration may be sought if issues between the surface owner and lessee cannot be resolved. Nothing in the rule prohibits the surface owner and lessee from discussing issues related to operations early in the process to minimize disagreements.
This comment was addressed during the negotiated rulemaking and there is no need to further revise the rule. In response to similar public comments during the negotiated rulemaking, the Committee proposed, and the Department is enacting in the final rule, several new provisions aimed specifically at protection of the land, environment, and public health and safety. Those provisions include, for example, clarifying and specifying the lessee's environmental responsibilities and obligations while conducting operations (Section 226.45), adding compliance with BLM Onshore Oil and Gas Order 6 regarding H2S safety (Section 226.60(f)), adding requirements for ensuring well safety (Section 226.60(b)–(e)), site security (Section 226.65), and safety standards for lessee operations and equipment (Section 226.46). Moreover, the regulations have always had provisions regarding damages to surface lands and an arbitration process for resolving disputes that remain in the rule. It is relevant to note that one commenter specifically noted that the proposed rule does provide protections for the surface owner, for example, Section 226.38 requires lessees to remit a $2,500 commencement fee for each well drilled which is credited to the final settlement, and is an increase from the past rule of only $300. In addition, the payment of commencement fees does not affect the surface owner's ability to seek additional monies for damages and Section 226.40 allows a surface owner to seek additional monies for damages. Specifically, Section 226.41 provides for an impartial arbitrator to resolve issues and allows for arbitration awards to be challenged in a court of competent jurisdiction. Lastly, all Osage leases require the lessee to conduct operations consistent with a prudent operator standard and failure to abide by that standard or regulations specifically aimed at protecting the environment can subject the lease to termination under Sections 226.67 and 226.68.
The Department agrees that there is a need to address this issue, and has further revised Section 226.46 to include a provision requiring lessees to comply the National Electric Code with regard to the running and maintenance of electrical lines to ensure that minimum standards are required.
The Department disagrees with this comment. However, the Department does agree that a surface owner should be able to submit information as part of the process and has revised Section 226.47 to provide that the Superintendent will notify or attempt to
Section 226.48 governs the use of surface water and was not substantively changed as part of this rule. The ownership of surface water is a legal question that does not need to be, and cannot be, resolved as part of this rulemaking process.
As noted above, Section 226.48 governs the use of surface water and was not substantively changed as part of this rule. The ownership of surface water is a legal question that does not need to be, and cannot be, resolved as part of this rulemaking process. Comments were also received expressly disputing any comments asserting that all water use is subject to State law and this commenter notes that the Osage Nation's ownership and regulatory control of reserved waters within Osage County is a historical fact and without question, which is made clear by the creation of the Osage Reservation in 1872 and the Osage Mineral Estate in 1906. This comment further supports leaving Section 226.48 unchanged; moreover Section 226.48 was originally codified in 1974 and has remained unchanged for over 40 years.
These comments are adequately addressed in the rule to the extent necessary. Section 226.53(a) makes clear that any permanent improvements become the property of the surface owner and the only portion of that provision that was deleted was the exception for permanent improvement to become part of the surface when termination of a lease is for something other than cause, because it did not make sense to have such an exception as a legal matter. To the extent that a surface owner has been damaged by the siting of a permanent improvement, the regulations have always contemplated that the surface owner would seek damages in accordance with the damages provisions. Section 226.53(a) also already requires that a lessee remove all personal property within 90 days of termination of the lease. And, Section 225.53(c) requires that a lessee must plug all wells that are to be abandoned and Section 225.53(d)(4) requires that within 90 days of plugging the well, the lessee must clean up the premises around the well.
This comment is outside the scope of the regulations and relates to the internal procedures for how the Bureau should store information required to be submitted under the regulations and how such information is or can be disseminated to the public. However, Section 226.60(e) already requires the lessee to protect freshwater from contamination and the Bureau will further consider this comment as it considers the development of a Web site for information related to oil and gas operations within Osage County and evaluates the information that could be posted for the benefit of the public consistent with the Freedom of Information Act.
This rule did not change Section 226.57 and it remains substantively the same as in the current regulations (previously found at Section 226.33). The Department also found a lack of information submitted in conjunction with this comment justifying the need to have an across the board minimum setback beyond 300 feet of the leased land boundary and 200 feet of public highways, established watering places, dwellings, granaries and barns. Moreover, it is relevant to note that Section 226.57 provides minimum setbacks and the lessee and surface owner may further discuss the need for an increase in the setback in any particular circumstance.
This comment does not relate directly to the rule and no change to the rule is necessary. Section 226.59 specifies that the lessee must take certain precautions to prevent damage or pollution to freshwater. The Department agrees that the Bureau should endeavor to work with the best available data regarding freshwater data and maps applicable in Osage County and it will work with the United States Geological Survey and EPA to ensure that it has the most up to date information. The Bureau must review and approve operations consistent with the best available information it has available and it would be arbitrary to require all surface casings to go to a depth greater than 200 feet irrespective of the data and information available to the Bureau. Instead, Section 226.59 gives the Superintendent broad authority to take necessary steps to protect fresh water or other mineral bearing formations depending on particular circumstances. For example, in some instances depending on the hydrology in a particular area, the Superintendent may require surface casing to a depth greater than 200 feet. In other areas within Osage County, the hydrology may be such that freshwater and other mineral bearing formations are adequately protected if surface casing are set at a depth less than 200 feet. Nothing in the rule prohibits a person or entity from submitting for consideration by the Superintendent, information relating to the depth of nearby residential water wells that may require setting the depths for a particular well deeper than
This rule did not change Section 226.59 and it remains substantively the same (previously found at Section 226.35). Further, Section 226.59 gives the Superintendent broad authority to address these types of concerns on a case by case basis because the regulations allow the Superintendent to take necessary steps to protect fresh water or other mineral bearing formations depending on the particular circumstances.
No further revision to Section 226.60 is necessary in response to this comment. Section 226.60 was recommended by the Negotiating Rulemaking Committee in an attempt to balance the need to have additional safeguards for maintaining well control and the Committee specifically reviewed and examined BLM rules and procedures. The Department found that that section combines existing language from the regulations with language from BLM regulations governing well control. For example, paragraph (a) is text from the old regulations, but paragraphs (b) through (e) were adopted consistent with BLM regulations regarding well control. The Department believes that these new provisions provide additional protections to ensure well control that have not been in place before in Osage County. Moreover, if appropriate, under Section 226.3, in accordance with the Administrative Procedure Act the Bureau can adopt BLM's Onshore Oil and Gas Order No. 2 in the future.
These comments are adequately addressed in Section 226.60(f) of the rule and no further change in necessary. Section 226.60(f) requires compliance with BLM Onshore Oil and Gas Order No. 6. This Order identifies the Bureau of Land Management's requirements and minimum standards of performance expected from operators when conducting operations involving oil or gas that is known or could reasonably be expected to contain hydrogen sulfide (H2S) or which results in the emission of sulfur dioxide (S02) as a result of flaring H2S. This Order also identifies the gravity of violations, probable corrective action(s), and normal abatement periods. In addition, the Bureau has been working with EPA to develop an Environmental Compliance Manual for Osage County and has received comments from the public to include in that manual best management practices, including best practices for venting and flaring hydrogen sulfide gas.
The rule contains mechanisms that allow the Bureau to more efficiently perform inspections. For example, in Section 226.62(c), lessees are required to give notice to the Superintendent before a purchaser is notified to remove a tank of oil to allow Bureau employees to perform periodic and random inspections to ensure accountability. In addition, under Section 226.63(c), a lessee must provide 48 hour notice before a lessee calibrates or adjusts gas meters. Osage County is approximately 1.5 million acres and the Bureau cannot inspect all oil withdrawals or be at every gas meter calibration, but the notification system is intended to provide a better system that will enable Bureau employees to plan where they should be on any given day to ensure that field inspections include areas where tanks are ready to be picked up by lessees or meters will be calibrated. The Department has determined that the additional burden on the public of requiring more detail or increased frequency in reporting under the Paperwork Reduction Act is not clearly justified by any potential benefit. To the extent that the commenter suggests that Bureau employees be trained, such comments are outside the scope of the rulemaking. However, the Departmental employees must meet certain qualifications before they are hired by the Bureau and field inspectors are participating in the BLM's PET certification training.
The Negotiated Rulemaking Committee made the recommendation to adopt the standards in On-Shore Oil and Gas Order 5 because the regulations were too vague and did not provide guidance to lessees for the measurement of gas. This has resulted in lessees utilizing different standards for the measurement of gas, which has caused concern with respect to proper accounting of gas production and proper payment of royalties for gas. Ensuring proper measurement of gas was also an issue in the tribal trust litigation against the United States and was one of the issues that the Committee was tasked with addressing in this rulemaking. Adoption of On-Shore Oil and Gas Order 5, in Section 226.63, now specifies uniform standards consistent with how gas is measured on all other Indian and Federal lands. In particular, On-Shore Oil and Gas Order 5 requires lessees to measure gas on the lease, unit, unit participating area or communitized area and that any measurements at locations off the lease, unit, unit participating area, or communitized area must be approved by the Superintendent. To the extent that a lessee already has installed meters on their lease consistent with On-Shore Oil and Gas Order 5, no changes will be required. However, the Department believes this change is necessary to bring uniformity throughout Osage County in the measurement of gas and ensure that it is fulfilling its trust responsibility to the beneficiaries of the Osage mineral estate.
The requirement that a lessee give notice to the Superintendent before a tank of oil is removed by a purchaser was added by the Negotiated Rulemaking Committee to specifically address concerns that the Bureau needs to more efficiently inspect and monitor operations within Osage County in order to verify accuracy of tank sales. Given that Osage County consists of 1.5 million acres, the Department agrees with the Committee that requiring notice will enable it to better assess where field inspectors need to be on any given day to maximize the number of inspections that can be done, rather than sending out field inspectors to random locations in the hopes of finding tanks that are full and will be picked up, as is the current practice. The Bureau has also created more positions for inspectors within Osage County to address staffing shortfalls. During discussions on this topic in the Negotiated Rulemaking, it was noted that lessees have to make calls to inform a purchaser that a tank is ready and the Department determined that the burden of calling the Bureau in addition to the purchaser seemed minimal.
This comment is outside the scope of and does not relate to the rulemaking, rather it concerns internal budgetary operations.
The Department received numerous comments regarding public safety concerns around well sites from surface owners and found that the site security plan requirements were added by the Committee to specifically address these concerns. Site security plans are not intended to be costly or labor intensive and are generally required for oil and gas operations on all other Indian and Federal lands.
The SPCC plans are required by the EPA and are submitted to the EPA only to prevent a spill of oil into navigable waters or shorelines, whereas site security plans are required by the Bureau and submitted for all oil and gas operations to proactively address a multitude of public safety concerns. For these reasons, the site security plans are not duplicative of the SPCC Plans. The site security plans will help promote lessee compliance with EPA's requirement for SPCC plans regarding oil spills, because lessees will have information more readily available from the site security plans to assist them in completing an SPCC Plan.
No evidence has been presented regarding estimated increased costs in relation to this comment. The United States has a legal obligation to maintain records regarding operations for which it is responsible. The Department must be able to go back for at least six years and collect documents and data related to operations because the statute of limitations for damage claims on behalf of or against the Department is six years. Furthermore, the Department finds it relevant that on all other Indian and Federal lands, the United States requires lessees adhere to minimum site security standards for oil and gas operations. The requirements in Section 226.65 were added in response to concerns from surface owners regarding well site safety, as well as, from the members of the Osage Minerals Council, who were concerned with ensuring accountability of oil and gas production. In response to these concerns, the provisions in Section 226.65(b) were added to provide a minimum standard for ensuring accountability regarding oil and gas operations. The rule is intended to bring Osage County in line with minimum requirements that are used on all other Indian and Federal lands. Section 226.65 mirrors the standard applicable to other Indian and Federal lands for oil and gas operations that is found in the BLM's regulations. In particular the Department finds paragraph (b) addressed concerns from the Osage Minerals Council relating to ensuring that there are uniform safeguards regarding accountability for oil and gas production within Osage County and it provides transparency and ensures that lessees are all following a minimum standard. Additionally, the Department has discovered through the negotiated rulemaking process and public comments that there are genuine concerns regarding well site safety and the new requirement in Section 226.65(c) will help with transparency and ensure that lessees have a uniform standard to comply with and are aware of their responsibilities.
This comment does not suggest any changes to the rule. However, the Department's intended purpose of Section 226.65(b) is to provide a minimum standard to aid in accountability of oil and gas production and Section 226.65(c) adds new protections regarding site security that have not previously been required of all lessees.
The Osage mineral estate is unique in that the entire subsurface is held in trust by the United States for the benefit of the Osage Tribe. Notwithstanding that, the public, including surface owners, were able to participate in the Negotiated Rulemaking process and the Committee added the site security provisions to the regulations in direct response to surface owner concerns. In addition, the Department has never required surface use agreements in Osage County, but there are provisions for the surface owner to work with the lessees and collect damages for use of surface lands. The Department encourages surface owners and lessees to work together to address issues related to surface lands.
In response to this comment, the Department has further revised Section 226.66 (previously numbered 226.41) to require that, in addition to requiring lessees to report fires, theft, and vandalism, lessees also report environmental accidents to the Superintendent and within one business
This comment is outside the scope of the regulatory process. The Anti-Deficiency Act, 31 U.S.C. 1341, requires that fees and penalties be transmitted to the United States Treasury. Absent specific legislation to the contrary, the Osage Agency must comply with the Anti-Deficiency Act and remit fees and penalties to the United States Treasury.
The Bureau does not keep fines that are collected, but is required to transmit those to the United States Treasury in accordance with the Anti-Deficiency Act.
Fines are not mandatory, but are only imposed when a lease is not operating in accordance with the regulations. Fines are intended to deter violations and encourage lessees to comply with the regulations.
The Department has decided not to change the fines and penalties section of the rule and the fines and penalties as stated in the prior regulations remain intact, unless otherwise set forth in a lease. To further encourage lessees to comply with the regulations, the Department has, however, deleted the provision in 226.67 allowing the Osage Minerals Council to waive late fees.
To the extent that these comments can be addressed by the rule, the Department has further revised Section 226.46 to include a provision requiring lessees to comply with the National Electric Code with regard to the running and maintenance of electrical lines to ensure that minimum standards are required. If surface owners or others have concerns regarding exposed pipes or other health and safety issues they may contact the Bureau through its reporting hotline at 1–855–495–0373. Surface owners can contact OERB at 1–800–664–1301 and consistent with their process, OERB can remediate abandoned well sites in Osage County.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is also part of the Department's commitment under the Executive Order to reduce the number and burden of regulations and provide greater notice and clarity to the public.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The rule's requirements will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises because the rule is limited to management and administration of the Osage mineral estate.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is therefore not required.
Under the criteria in Executive Order 13132, this rule has no 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.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation, and is written in clear language and contains clear legal standards.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian tribes and Indian trust assets. This rule was developed by negotiated rulemaking with representatives of the affected tribe.
This rule includes information collections requiring approval under the
OMB has approved the information collections in this final rule and assigned it OMB Control No. 1076–0180. This approval will expire on 03/31/2018. Questions or comments concerning this information collection should be directed to the person listed in the
The table showing the burden of the information collection is included below for your information.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. It is categorically excluded from further review under 43 CFR 46.210(i) because these are regulations “whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process either collectively or case by case.” No extraordinary circumstances exist that would require greater NEPA review.
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
Indians—lands.
For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, revises part 226 in Title 25 of the Code of Federal Regulations to read as follows:
Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec. 3, 52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660.
As used in this part, terms have the meanings set forth in this section.
(1) Negligence on the part of the lessee; or
(2) The failure of the lessee to take all reasonable measures to prevent and/or control the loss; or
(3) The failure of the lessee to comply fully with the applicable lease terms and regulations, applicable orders and notices, or the written orders of the Superintendent; or
(4) Any combination of the foregoing.
(1) Produces raw natural gas not associated with crude petroleum oil at the time of production; or
(2) Produces more than 15,000 standard cubic feet of raw natural gas to each barrel of crude petroleum oil from the same producing formation.
(1) A reduction in the quantity or quality of oil and gas or other marketable product ultimately producible from a reservoir under prudent and proper operations; or
(2) Avoidable surface loss of oil or gas or other marketable product.
All oil and gas activities or activities related to development of other marketable products conducted in Osage County are subject to:
(a) The regulations in this part;
(b) Lease terms;
(c) Orders of the Superintendent; and
(d) All other applicable laws, regulations, and authorities.
(a) In accordance with applicable laws and regulations, the Bureau of Indian Affairs (BIA), after consultation with the Osage Minerals Council where appropriate, is authorized to:
(1) Issue and make effective in Osage County oil and gas orders or notices to lessees (NTLs); or
(2) Adopt onshore oil and gas orders, NTLs, or related oil and gas regulations issued by the Bureau of Land Management.
(b) Adoptions by the Bureau of Indian Affairs remain in effect according to their terms and cannot be modified by any action of the Bureau of Land Management unless the Director issues further orders to that effect in accordance with the Administrative Procedure Act where applicable.
(a) The Superintendent is authorized and directed to:
(1) Approve unitization, communitization, gas storage and other contractual agreements;
(2) Assess compensatory royalty;
(3) Approve suspensions of operations or production, or both;
(4) Approve and monitor lessee proposals for drilling, development or production of oil and gas and any other marketable product;
(5) Perform administrative reviews;
(6) Impose monetary assessments or penalties;
(7) Provide technical information and advice relative to oil and gas and any other marketable product development and operations;
(8) Approve, inspect, and regulate the operations that are subject to the regulations in this part;
(9) Require compliance with lease terms, with the regulations in this title and all other applicable regulations and laws; and
(10) Require that all operations be conducted in a manner which protects natural resources and environmental quality, protects life and property, and results in the maximum ultimate recovery of oil and gas and any other marketable product with minimum waste and with minimum adverse effect on the ultimate recovery of other mineral resources unless otherwise approved by the Superintendent.
(b) The Superintendent may issue written orders to govern specific lease operations. Before approving operations on a leasehold, the Superintendent must determine that the lease is in effect, that acceptable bond coverage has been provided, and that the proposed plan of operations is sound.
(c) The Superintendent must establish procedures to ensure that each lease site which has a documented history of noncompliance with applicable provisions of law or regulations, lease terms, orders or directives be inspected at least once annually.
(a) The steps in a lease sale are as follows:
(1) A written application, together with any nomination fee, for tracts to be offered for lease shall be filed with the Superintendent.
(2) The Superintendent, with the consent of the Osage Minerals Council, shall publish notices for the sale of oil leases, gas leases, and oil and gas leases to the highest responsible bidder on specific tracts of the unleased Osage mineral estate. The Superintendent may require any bidder to submit satisfactory evidence of his/her good faith and ability to comply with all provisions of the notice of sale.
(3) A successful bidder must deposit with the Superintendent within 5 business days following the sale, a cashier's check, money order, or electronic funds transfer in an amount not less than 25 percent of the cash bonus offered as a guaranty of good faith. Any and all bids are subject to acceptance by the Osage Minerals Council and approval by the Superintendent.
(4) Within 20 days after being notified, the successful bidder must submit to the Superintendent the balance of the bonus, a $75 filing fee, and a completed lease form.
(i) The Superintendent may extend the deadline for submitting the completed lease form, but no extension will be granted for remitting the balance of monies due.
(ii) The deposit will be forfeited for the use and benefit of the Osage mineral estate if any of the following occur:
(A) The bidder fails to pay the full consideration by the required deadline; or
(B) The bidder fails to file the completed lease by the required deadline or extension thereof; or
(C) The lease is rejected, pursuant to subsection 5, through no fault of the Osage Minerals Council or the Superintendent.
(5) The Superintendent may reject a lease made on an accepted bid, upon satisfactory evidence of collusion, fraud, or other irregularity in connection with the notice of sale.
(b) The Superintendent may approve leases made by the Osage Minerals Council in conformity with the notice of sale, regulations in this part, bonds, and other instruments required.
(c) Within 30 calendar days following approval of a lease, the Superintendent shall post at the Agency, a legal description of the mineral estate that was leased.
(d) Prior to approval by the Superintendent, each oil and/or gas lease shall be assessed and evaluated for their environmental impact in accordance with Bureau regulations implementing the National Environmental Policy Act and other applicable laws.
(e) The lessee accepts a lease with the understanding that a mineral not covered by the lease may be leased separately.
(f) No lease, assignment thereof, or interest therein will be approved to any employee or employees of the
(g) The Osage Minerals Council may utilize the following procedures among others, in entering into a lease:
(1) A lease may be entered into through competitive bidding as outlined in paragraph (a)(2) of this section, negotiation, or a combination of both;
(2) The Osage Minerals Council may request the Superintendent undertake the preparation, advertisement and negotiation of leases; and/or
(3) The Osage Minerals Council may request the Superintendent to provide information regarding the current estimated value of any or all or each of the leases to the Osage Minerals Council based on comparable sales of Federal, Indian, State, and private leases.
(h) The Superintendent may approve any lease made by the Osage Minerals Council.
(a) The lessee may, with the approval of the Superintendent and payment of a $75 filing fee, surrender all or any portion of any lease, have the lease cancelled as to the portion surrendered and be relieved from all future obligations and liabilities.
(b) If the lease, or portion, being surrendered is owned in undivided interests by more than one party, then the following requirements apply:
(1) All parties must join in the application for cancellation;
(2) If the lease has been recorded, then the lessee must execute a release and record the same in the proper office;
(3) Surrender does not entitle the lessee to a refund of the unused portion of rental paid in lieu of development, nor does it relieve the lessee and his or her sureties of any obligation and liability incurred prior to the surrender;
(4) When there is a partial surrender of any lease and the acreage to be retained is less than 160 acres, the surrender is effective only with consent of the Osage Minerals Council and approval of the Superintendent.
(c) The Superintendent cannot approve the surrender or partial surrender of a lease until a determination has been made that all wells have either been properly plugged and abandoned, and/or the future legal liability for plugging and abandoning wells within the lease or partial lease to be surrendered has been assumed in writing by another financially responsible party.
Sums due under a lease contract and/or the regulations in this part must be paid in the manner and method specified by the Superintendent, unless otherwise specified in these regulations. Such sums constitute a prior lien on all equipment and unsold oil on the leased premises.
Leases issued pursuant to this part are subject to the current regulations of the Secretary, all of which are made a part of such leases: Provided, that no amendment or change of such regulations made after the approval of any lease operates to affect the term of the lease, rate of royalty, rental, or acreage unless agreed to by both parties and approved by the Superintendent.
Lessees shall furnish surety bonds or personal bonds acceptable to the Superintendent as follows:
(a) The per-well “Bonding Amount” shall be $5,000.
(b) A surety bond or personal bond equal to the Bonding Amount must be filed at the time an Application for Permit to Drill is approved and/or the lessee acquires liability for existing wells on a lease.
(c) A lessee must at all times maintain on file with the Superintendent surety bonds and/or personal bonds in an amount equal to the Bonding Amount times the number of wells on the lessee's leases, up to a maximum of 25 wells.
(d) To meet the requirements of this section, a surety bond must be issued by a qualified surety company approved by the Department of the Treasury (see Department of the Treasury Circular No. 570).
(e) Personal bonds must be accompanied by at least one of the following:
(1) A certificate of deposit issued by a financial institution, the deposits of which are federally insured, explicitly granting the Secretary full authority to demand immediate payment in case of default in the performance of the terms and conditions of the lease. The certificate must explicitly indicate on its face that Secretarial approval is required prior to redemption of the certificate of deposit by any party.
(2) A cashier's check.
(3) A certified check.
(4) Negotiable Treasury securities of the United States of a value equal to the amount specified in the bond. Negotiable Treasury securities must be accompanied by a proper conveyance to the Superintendent of full authority to sell such securities in case of default in the performance of the terms and conditions of a lease.
(5) An irrevocable letter of credit issued by a financial institution, the deposits of which are Federally insured, for a specific term, identifying the Superintendent as sole payee with full authority to demand immediate payment in the case of default in the performance of the terms and conditions of a lease. Letters of credit are subject to the following conditions:
(i) The letter of credit must be issued only by a financial institution organized or authorized to do business in the United States;
(ii) The letter of credit must be irrevocable during its term. A letter of credit used as security for any lease upon which drilling has taken place and final approval of all abandonment has not been given must be collected by the Superintendent if not replaced by other suitable bond or letter of credit at least 30 calendar days before its expiration date;
(iii) The letter of credit must be payable to the Superintendent upon demand, in part or in full, upon receipt from the Superintendent of a notice of attachment stating the basis therefor,
(iv) The initial expiration date of the letter of credit must be at least 1 year following the date it is filed; and
(v) The letter of credit must contain a provision for automatic renewal for periods of not less than 1 year in the absence of notice to the Superintendent at least 90 calendar days prior to the originally stated or any extended expiration date.
(f) In lieu of a surety or personal bond required under this section, a bond in the penal sum of $150,000 may be filed with the Superintendent for full nationwide coverage of all leases to which the Lessee is or may become a party.
(a) The Superintendent may require an increase in the amount of any bond in appropriate circumstances, including, but not limited to, a history of previous violations, uncollected royalties due, or when the total cost of plugging existing wells and reclaiming lands exceeds the present bond amount based on the estimates determined by the Superintendent.
(b) The increase in bond amount may be to any level specified by the Superintendent, but in no circumstances shall it exceed the total of the estimated costs of plugging and reclamation, the amount of uncollected royalties due, plus the amount of monies owed to the lessor due to previous violations remaining outstanding.
Within 45 calendar days of receiving written notice from a lessee that a well has been plugged or a lease has expired, the Superintendent must release the bond upon confirming that:
(a) The well has been properly plugged and the well site has been reclaimed, or the lease site has been reclaimed;
(b) All property has been removed (unless otherwise agreed to in writing by the surface owner).
Leases, assignments, and supporting instruments must be in the form prescribed by the Secretary, and such forms are hereby made a part of the regulations.
(a) If the applicant for a lease is a corporation, it must file evidence of authority of its officers to execute papers; and with its first application it must also file a certified copy of its Articles of Incorporation and, if foreign to the State of Oklahoma, evidence showing compliance with the corporation laws thereof.
(b) Whenever deemed advisable, the Superintendent may require a corporation to file any additional information necessary to carry out the purpose and intent of the regulations in this part, and such information must be furnished within a reasonable time.
(a) Oil leases, gas leases, and combination oil and gas leases. Unless the lessee completes and places in production a well producing and selling oil and/or gas in paying quantities on the land embraced within the lease within 12 months from the date of approval of the lease, or as otherwise provided in the lease terms, or 12 months from the date the Superintendent consents to drilling on any restricted homestead selection, the lease will terminate unless rental at the rate of not less than $3 per acre for an oil or gas lease, or not less than $6 per acre for a combination oil and gas lease, is paid at the beginning of the first year of the lease.
(1) The lease may also be held for the remainder of its primary term without drilling upon payment of the specified rental annually in advance, commencing with the second lease year.
(2) The lease will terminate as of the due date of the rental unless such rental is received by the Superintendent on or before said date.
(3) The completion of a well producing in paying quantities will, for so long as such production continues, relieve the lessee from any further payment of rental, except that, should such production cease during the primary term the lease may be continued only during the remaining primary term of the lease by payment of advance rental which will be due on the next anniversary date of the lease. Rental must be paid on the basis of a full year and no refund will be made of advance rental paid in compliance with the regulations in this part.
(b) The Superintendent may, with the consent of and under terms approved by the Osage Minerals Council, grant an extension of the primary term of a lease on which actual drilling of a well has commenced within the term thereof, or for the purpose of enabling the lessee to obtain a market for his/her oil and/or gas production.
(c) Irrespective of whether the lessee has drilled or paid rental, the Superintendent in his/her discretion may order further development of any leased acreage or a specific horizon in any lease term if, in his/her opinion, a prudent lessee would conduct further development. A prudent lessee will diligently develop the minerals underlying the leasehold. The Osage Minerals Council has the right to request a determination of whether there is diligent development by the Superintendent as to any lease and may submit any materials or analysis to support its request. Upon receipt of a request, the Superintendent will evaluate the request and may require additional information be submitted by the lessee and the Osage Minerals Council before making a final determination.
(d) If the lessee refuses to comply with an order by the Superintendent to diligently develop its leasehold as a result of a determination under paragraph (c) of this section, the refusal will be considered a violation of the lease terms and said lease will be terminated as to the acreage or horizon the further development of which was ordered, after any appeal of an order. The Superintendent will promptly notify the lessee of such termination.
(e) Except for a lease during its primary term for which rental payment has been paid, a lease that does not produce in paying quantities for 120 consecutive calendar days is thereby terminated by operation of law, effective immediately. The Superintendent will notify the lessee of such termination.
(1) The Superintendent has the authority before termination to approve in writing a temporary suspension of operations tolling the 120-day period for a specified number of days, due to force majeure, other hardship, or other extenuating circumstance.
(2) Any request for a temporary suspension of operations must be made in writing to the Superintendent at least 20 calendar days prior to the expiration of the 120-day period in which the lease has not produced in paying quantities.
(3) The Superintendent, for good cause, may extend in writing the time of any temporary suspension of operations.
(4) The Superintendent must provide a copy of any decision under this paragraph (e) to the Osage Minerals Council at the same time it is delivered to the lessee.
(f) Whenever the Osage Minerals Council identifies any lease that has terminated or may be subject to termination for any reason, the Osage Minerals Council has the right to request in writing appropriate action by the Superintendent, including but not limited to the issuance of a notice of termination to the lessee, and may submit any materials or analysis in support of its request. Upon receipt of such a request, within 90 calendar days the Superintendent must either take the requested action or issue a written decision responsive to the request.
(g) The Superintendent may impose restrictions as to time of drilling and rate of production from any well or wells when the Superintendent judges these restrictions to be necessary or proper for the protection of the natural resources of the leased land and the interests of the Osage mineral estate. The Superintendent may consider, among other things, Federal and Oklahoma laws regulating either drilling or production.
(h) If a lessee holds both an oil lease and a gas lease covering the same acreage, such lessee is subject to the provisions of this section as to both the oil lease and the gas lease.
(a) Where lands in any leases are being drained of their oil or gas content by wells outside the lease, the lessee must drill or modify and produce all wells necessary to protect the leased lands from drainage within a reasonable time after the earlier of when the lessee knew or should have known of the drainage. In lieu of drilling or modifying necessary wells, the lessee may, with the consent of the Superintendent, pay compensatory royalty for drainage that has occurred or is occurring.
(b) Actions under paragraph (a) of this section are not required if the lessee proves to the Superintendent that when it first knew or had constructive notice of drainage it could not produce a paying quantity of oil or gas from a protective well on the lease for a reasonable profit above the cost of drilling, completing and operating the protective well.
(c) A lessee has constructive notice that drainage may be occurring when well completion or first production reports for the draining well are publicly available, or, if the lessee operates or owns any interest in the draining well or lease, upon completion of drill stem, production, pressure analysis, or flow tests of the draining well.
(d) If a lessee assigns its interest in a lease or transfers its operating rights, it is liable for drainage that occurs before the date the assignment or transfer is approved by the Superintendent. Any lessee who acquires an interest in a lease on which the Superintendent has determined that the assignor was required to take action under paragraph (a) of this section is liable for paying compensatory royalties associated with production occurring on and after the date the assignment or transfer is approved by the Superintendent.
(a) The Superintendent may send a demand letter by certified mail, return receipt requested, or personally serve the lessee with notice, if the Superintendent believes that drainage is occurring. However, the lessee's responsibility to take protective action arises when it first knew or had constructive notice of the drainage, even when that date precedes the demand letter.
(b) Since the time required to drill and produce a protective well varies according to the location and conditions of the oil and gas reservoir, the Superintendent will determine this on a case-by-case basis. The Superintendent will consider several factors, including, but not limited to:
(1) The time required to evaluate the characteristics and performance of the draining well;
(2) Rig availability;
(3) Well depth;
(4) Required environmental analysis;
(5) Special lease stipulations that provide limited time frames in which to drill; and
(6) Weather conditions.
(c) If the Superintendent determines that a lessee did not take protective action in a timely manner, the lessee will owe compensatory royalty for the period of the delay.
(d) The Superintendent will assess compensatory royalty beginning on the first day of the month following the earliest reasonable time the lessee should have taken protective action and continuing until:
(1) The lessee drills sufficient economic protective wells and the wells remain in continuous production;
(2) The draining well stops producing; or
(3) The lessee relinquishes its interest in the lease.
Leases issued under this part are for a primary term as established by the Osage Minerals Council, approved by the Superintendent, and so stated in the notice of sale of such leases and so long thereafter as the minerals specified are produced in paying quantities.
(a) The lessee must deliver to the Superintendent a royalty on production removed or sold from the lease, that proportion specified in the notice of sale (but not less than 20 percent) of the amount or value of the oil determined under paragraph (b) of this section.
(b) Unless the Osage Minerals Council, with approval of the Superintendent, elects to take the royalty in kind, the settlement value per barrel is the greater of:
(1) The average NYMEX daily price of oil at Cushing, Oklahoma, for the month in which the produced oil was sold, adjusted for gravity using the scale applicable under § 226.19. The applicable average NYMEX daily price of oil at Cushing, Oklahoma and gravity adjustment scale will be available from the Superintendent upon request, on or before the fifth day of the month following production; or
(2) The actual selling price for the transaction as adjusted for gravity.
(c) Should the lessor, with approval of the Secretary, elect to take the royalty in kind, the lessee must furnish free storage for royalty oil for a period not to exceed 60 calendar days from date of production after notice of such election.
(a) The gravity adjustment of Average Daily NYMEX Price of oil at Cushing, Oklahoma under § 226.18(b)(1) is a deduction from the price per barrel, as follows:
(b) The Superintendent may, on or before the fifth day of the month following production, publish a gravity adjustment scale for oil of gravity below 40.0 degrees or above 44.9 degrees that supersedes this paragraph, but only if the Superintendent determines, based on substantial evidence, that market conditions so warrant.
(a) All gas removed from the lease from which it is produced must be metered before removal unless otherwise approved by the Superintendent and be subject to a royalty of not less than 20 percent of the gross proceeds of the gas. Unless the Osage Minerals Council, with approval of the Superintendent, elects to take the royalty in kind, gross proceeds must be
(b) Under this paragraph, gross proceeds of the gas must be determined by multiplying the measured volume of gas at the well (Mcf), times the heating volume of the gas (MMBtu/Mcf), times the index price of the gas ($/MMBtu) for Oklahoma Zone 1 published by the Department of the Interior's Office of Natural Resources Revenue. If that Monthly Index Price ceases to be published and/or is not otherwise available, the price must be calculated in a comparable manner to be determined by the Superintendent. The heating value of the gas shall be calculated in accordance with American Petroleum Institute MPMS Chapter 14, Section 5, and shall be reported under the following conditions: Dry (no water vapor), real, gross, and adjusted pressure of 14.73 psi and a temperature of 60 degrees Fahrenheit. If any lessee supplies gas produced from one lease for operation and/or development of any other lease, including another lease held by the same lessee, the royalty calculated under this section must be paid on all gas so used.
(c) Under this paragraph, gross proceeds of the gas will be 100 percent of the actual proceeds from sales of all residue gas produced from the lease and one hundred percent of the actual proceeds from sales of all natural gas liquids produced from the lease minus the actual, reasonable cost of processing not to exceed 50 percent of the actual sales value of the natural gas liquids (including drip condensate). If the actual reasonable cost of processing cannot be obtained, upon approval by the Superintendent, the lessee may determine such cost in accordance with the alternative methodology and procedures in 30 CFR 1206.180(a) or (b). No other deductions of any kind, whether monetary or volumetric or otherwise, for any purpose, including but not limited to compression, dehydration, gathering, treating, or transportation are allowed.
Royalty is due on all oil and gas wasted or avoidably lost, the volume and quality of which will be determined by the Superintendent after taking into consideration information provided by the lessee, but resolving all doubts about volume and quality in favor of the lessor.
Minimum royalty will be owed in the event the royalty paid from producing leases during any year is less than the annual rental specified for the lease. Minimum royalty is due and payable at the end of the lease year in an amount equal to the annual rental less the amount paid in royalty on production.
(a) After the primary term, the lessee must submit with his/her payment evidence that the lease is producing in paying quantities.
(b) The Superintendent is authorized to determine whether the lease is actually producing in paying quantities or has terminated for lack of such production.
(c) Payment for any underpayment not made within the time specified is subject to a late charge at the rate of not less than 1
A royalty on other marketable products must be paid at the rate of not less than 20 percent of the actual sales value of the other marketable products sold, in addition to any other royalty due on oil or gas.
Any of the executive departments of the United States Government have the option to purchase all or any part of the oil produced from any lease at not less than the price as defined in § 226.18.
(a) Royalty payments due may be paid by either the purchaser or the lessee, provided that the lessee must provide a written agreement to the Superintendent if the purchaser has agreed to be the responsible party for making royalty payments.
(b) All payments are due by the end of the month following the month during which the oil and gas is produced and sold, except when the last day of the month falls on a weekend or holiday. In such cases, payments are due on the first business day of the succeeding month. All payments must cover the sales of the preceding month.
(c) Failure to make such payments subjects the responsible party as provided in paragraph (a) of this section to a late charge at the rate of not less than 1
The lessee must furnish certified monthly reports covering all operations in a form specified by the Superintendent, whether there has been production or not, indicating therein the total amount of oil, raw natural gas, and other products subject to royalty payment, by the end of the month following the month during which the oil and gas is produced and sold, except when the last day of the month falls on a weekend or holiday. In such cases, reports are due on the first business day of the succeeding month.
(a) Reports covering oil production must include the date of each sale of oil, well or lease identity, lessee, purchaser, volume of oil sold, gravity of oil sold, price paid per barrel for the sale, 40-degree price used for the sale, gravity adjustment scale used for the sale, and total amount paid for the sale.
(b) Reports covering gas production must contain the total volume of raw natural gas measured at the well, the BTU value of raw natural gas produced at the well, the periodic gas analysis applicable to the sale, and the total value paid for the raw natural gas, residue gas, natural gas liquids, and condensate.
(c) Report forms must be submitted in .csv (comma separated value) or ASCII format, or such other equivalent format specified by the Superintendent. The Superintendent must specify the method of transmittal. The Superintendent may specify that lessees must submit the reports and information required by this section directly to other agencies within the Department of the Interior, in lieu of the Superintendent.
(d) The Superintendent must provide to the Osage Minerals Council copies of all reports under this section on at least a quarterly basis in the format originally received by the lessee. Upon written request by the Osage Minerals Council, the Superintendent will require lessees to provide to the Osage Minerals Council copies of run tickets.
(e) Failure to remit reports subjects the lessee to further penalties as provided in § 226.67 and § 226.68 and subjects any royalty payment contract or division order to termination.
(a) The lessee may enter into division orders or contracts with the purchasers of oil, gas, or derivatives therefrom that will provide for the purchaser to make payment of royalty in accordance with
(1) The division orders or contracts do not relieve the lessee from responsibility for the payment of the royalty should the purchaser fail to pay.
(2) No production may be removed from the leased premises until a division order and/or contract and its terms are approved by the Superintendent:
(3) The Superintendent may grant temporary permission to run oil or gas from a lease pending the approval of a division order or contract.
(4) The lessee must file a certified monthly report and pay royalty on the value of all oil and gas used off the premises for development and operating purposes.
(5) The lessee is responsible for the correct measurement and reporting of all oil and/or gas taken from the leased premises.
(b) The lessee must require the purchaser of oil and/or gas from its lease or leases to furnish the Superintendent, a statement reporting the gross barrels of oil and/or gross Mcf of gas sold and sales price per barrel and/or gross Mcf during the preceding month, by the end of the month following the month during which the oil and gas is produced and sold, except when the last day of the month falls on a weekend or holiday. In such cases, statements are due on the first business day of the succeeding month.
The Osage Minerals Council and the lessee or lessees, may, with the approval of the Superintendent, unitize or merge, two or more oil or oil and gas leases into a unit or cooperative operating plan to promote the greatest ultimate recovery of oil and gas from a common source of supply or portion thereof embracing the lands covered by such lease or leases.
(a) The cooperative or unit agreement is subject to the regulations in this part and applicable laws governing the leasing of the Osage mineral estate.
(b) Any agreement between the parties in interest to terminate a unit or cooperative agreement as to all or any portion of the lands included must be submitted to the Superintendent for his/her approval.
(c) Upon approval of unit termination under paragraph (b) of this section, the leases included under the cooperative or unit agreement will be restored to their original terms.
(d) For the purpose of preventing waste and to promote the greatest ultimate recovery of oil and gas from a common source of supply or portion thereof, all oil leases, oil and gas leases, and gas leases issued under this part may be required to join a unit development plan affecting the leased lands by the Superintendent with the consent of the Osage Minerals Council. This plan must adequately protect the rights of all parties in interest, including the Osage mineral estate.
Leases or any interest therein may be assigned or transferred only with the approval of the Superintendent. The assignee must be qualified to hold such lease under existing rules and regulations and furnish a satisfactory bond conditioned for the faithful performance of the covenants and conditions thereof.
(a) The lessee must assign either his/her entire interest in a lease or legal subdivision thereof, or an undivided interest in the whole lease: Provided, however, that the Superintendent may approve an assignment that covers only a portion of a lease with the consent of the Osage Minerals Council. Approval by the Superintendent of a lease assignment or transfer of an interest in a lease or legal subdivision, is subject to the following:
(1) After the Superintendent approves the assignment or transfer, the lessee who made the assignment will continue to be responsible, jointly and severally with the assignee, for lease obligations that accrued before the approval date, whether or not they were identified at the time of the assignment or transfer. This includes paying compensatory royalties for drainage. It also includes responsibility for plugging wells and abandoning facilities that were drilled, installed, or used before the effective date of the assignment or transfer.
(2) The assignee agrees to comply with the terms of the original lease as it applies to the rights that were acquired. Among other obligations, the assignee must plug and abandon all unplugged wells, reclaim the lease site, and remedy all environmental problems in existence that a purchaser exercising reasonable diligence should have known at the time of the transfer. The assignee must also maintain a bond in accordance with these regulations.
(b) If a lease is divided by the assignment of an entire interest in any part, each part will become a separate lease and the assignee is bound to comply with all the terms and conditions of the original lease.
(c) A fully executed copy of the assignment must be filed with the Superintendent within 30 calendar days after the date of execution by all parties. If requested within the 30-day period, the Superintendent may grant an extension of 15 calendar days.
(d) A filing fee of $75 must accompany each assignment.
Agreements creating overriding royalties or payments out of production are not considered as an interest in a lease as such term is used in § 226.29. Agreements creating overriding royalties or payments out of production are hereby authorized and the approval of the Department of the Interior or any agency thereof is not required with respect thereto, but nothing in any such agreement modifies any of the obligations of the lessee under its lease and the regulations in this part. All such obligations are to remain in full force and effect, the same as if free of any such royalties or payments.
(a) The existence of agreements creating overriding royalties or payments out of production, whether or not actually paid, will not be considered in justifying the shutdown or abandonment of any well.
(b) Agreements creating overriding royalties or payments out of production need not be filed with the Superintendent unless incorporated in assignments or instruments required to be filed pursuant to § 226.29.
The Superintendent is authorized to approve drilling contracts with a stipulation that such approval does not in any way bind or require the Department to approve subsequent assignments that may be contemplated or provided for in the particular drilling contract approved by the Department. Approval merely authorizes entry on the lease for the purpose of development work.
A lessee owning both an oil lease and gas lease covering the same acreage is authorized to convert such leases to a combination oil and gas lease.
(a) The lessee must comply with applicable laws and regulations; with the lease terms; and with orders and instructions of the Superintendent. These include, but are not limited to, conducting all operations in a manner that:
(1) Ensures the proper handling, measurement, disposition, and site security of leasehold production;
(2) Protects other natural resources and environmental quality;
(3) Protects life and property; and
(4) Results in maximum ultimate economic recovery of oil and gas and other marketable products with minimum waste and with minimum adverse effect on ultimate recovery of other mineral resources.
(b) The lessee must permit properly identified authorized representatives of the Superintendent to enter upon, travel across, and inspect lease sites and records normally kept on the lease pertinent thereto without advance notice. Inspections normally will be conducted during those hours when responsible persons are expected to be present at the operation being inspected. Such permission must include access to secured facilities on such lease sites for the purpose of making any inspection or investigation for determining whether there is compliance with applicable law, the regulations in this part, and any applicable orders, notices or directives.
(c) For the purpose of making any inspection or investigation, the Superintendent has the same right to enter upon or travel across any lease site as the lessee.
(a) No operations are permitted upon any tract of land until a lease covering such tract is approved by the Superintendent. The Superintendent may, however, grant authority to any party under such lease, consistent with the regulations in this part that he or she deems proper, to conduct geophysical and geological exploration work.
(b) The lessee must submit applications on forms to be furnished by the Superintendent and secure approval before:
(1) Well drilling, treating, or workover operations are started on the leased premises.
(2) Removing casing from any well.
(c) The lessee must notify the Superintendent a reasonable time in advance of starting work, of intention to drill, redrill, deepen, plug, or abandon a well.
(d) Prior to approving any operations under this section, the Superintendent will determine whether an environmental assessment or other information is required to comply with applicable laws such as the National Environmental Policy Act. If an environmental assessment is deemed necessary, the Superintendent will notify the lessee that it must submit a draft environmental assessment, which will be reviewed and evaluated by the Superintendent before deciding whether to prepare an Environmental Impact Statement or issue a Finding of No Significant Impact. The Superintendent will also notify the lessee of any other information that must be submitted, such as cultural resources survey reports/archeological surveys when needed to comply with the National Historic Preservation Act and the Secretary's Standards and Guidelines for Archeology and Historic Preservation.
(a) The lessee may conduct operations within or upon a restricted homestead selection only with the written consent of the Superintendent.
(b) If the allottee is unwilling to permit operations on his/her homestead, the Superintendent will cause an examination of the premises to be made with the allottee and lessee or his/her representative. Upon finding that the interests of the Osage mineral estate require that the tract be developed, the Superintendent will endeavor to have the parties agree upon the terms under which operations on the homestead may be conducted.
(c) In the event the allottee and lessee cannot reach an agreement, the matter must be presented by all parties before the Osage Minerals Council, and the Council will make its recommendations. Such recommendations will be considered as final and binding upon the allottee and lessee. A guardian may represent the allottee. Where no one is authorized or where no person is deemed by the Superintendent to be a proper party to speak for a person of unsound mind or feeble understanding, the Principal Chief of the Osage Nation will represent him.
(d) If the allottee or his/her representative does not appear before the Osage Minerals Council when notified by the Superintendent, or if the Council fails to act within 10 calendar days after the matter is referred to it, the Superintendent may authorize the lessee to proceed with operations in conformity with the provisions of his/her lease and the regulations in this part.
(a) The lessee must notify or attempt to notify the surface owner in one general written notification sent by certified mail with a copy to the Superintendent that it plans to begin conducting the following activities over the term of its lease: Archeological or biological surveys, or staking of wells.
(b) No operations of any kind may commence until the lessee or its authorized representative meets with the surface owner or his/her representative. The lessee must request the meeting in writing by certified mail and provide a copy of the letter to the Superintendent. Unless waived by the Superintendent or otherwise agreed to between the lessee and surface owner, such meeting must be held at least 10 calendar days prior to the commencement or any operations. At such meeting lessee or its authorized representative must comply with the following requirements:
(1) Indicate the location of the well or wells to be drilled.
(2) Arrange for a route of ingress and egress. Upon failure to agree on a route of ingress and egress, said route will be set by the Superintendent after the Superintendent has notified or attempted to notify both the surface owner and lessee in writing of their opportunity to meet and submit information for consideration before a final decision is made.
(3) Furnish to said surface owners the name and address of the party or representative upon whom the surface owner must serve any claim for damages which he may sustain from mineral development or operations, and as to the procedure for settlement thereof as provided in § 226.41.
(4) Where the drilling is to be on restricted land, the lessee or its authorized representative must meet with and provide the information in paragraphs (b)(1)–(3) of this section to the Superintendent.
(5) When the surface owner or its representative cannot be contacted at the last known address or has not accepted a meeting request within 30 calendar days of receipt of the request, the Superintendent is required to authorize lessee, in writing, to proceed with operations.
The lessee or its authorized representative has the right to use so much of the surface of the land within the Osage mineral estate as may be reasonable for operations and marketing. This includes, but is not limited to the right to, lay and maintain pipelines, electric lines, pull rods, other appliances necessary for operations and marketing, and the right-of-way for ingress and egress to any point of operations.
(a) If the lessee and surface owner are unable to agree as to the routing of pipelines, electric lines, etc., said routing will be set by the Superintendent after the Superintendent has notified or attempted to notify both the surface owner and lessee in writing of their opportunity to meet and submit information for consideration before a final decision is made.
(b) The right to use water for lease operations is established by § 226.48.
(c) The lessee must conduct its operations in a workmanlike manner, commit no waste and allow none to be committed upon the land, nor permit any avoidable nuisance to be maintained on the premises under its control.
(a) Before commencing actual exploration and/or development, the lessee must pay or tender to the surface owner commencement money in the amount of $25 per shot hole for explosive source (for the acquisition of Single Fold (100 per cent Seismic)), or $400 per linear mile for surface source data acquisition. For the purpose of conducting a 3D seismic survey, the lessee must pay commencement money in the amount of $10 per acre occupied during the time the survey is conducted. The lessee must also pay commencement money in the amount of $2500 for each well.
(1) After payment of commencement money the lessee will be entitled to immediate possession of the drilling site.
(2) Commencement money will not be required for the redrilling of a well which was originally drilled under the current lease.
(3) A drilling site must be held to the minimum area essential for operations and not exceed one and one-half acres in area unless authorized by the Superintendent.
(4) Commencement money is a credit toward the settlement of the total damages.
(5) Acceptance of commencement money by the surface owner does not affect its right to compensation for damages as described in § 226.40, occasioned by the drilling and completion of the well for which it was paid.
(6) Since actual damage to the surface from operations cannot necessarily be ascertained prior to the completion of a well as a serviceable well or dry hole, a damage settlement covering the drilling operation need not be made until after completion of drilling operations.
(b) Where the surface is restricted land, commencement money must be paid to the Superintendent for the landowner. All other surface owners must be paid or tendered such commencement money directly.
(1) Where such surface owners are neither residents of Osage County, nor have a representative located therein, such payment must be made or tendered to the last known address of the surface owner at least 5 calendar days before commencing drilling operation on any well.
(2) If the lessee is unable to reach the owner of the surface of the land for the purpose of tendering the commencement money or if the owner of the surface of the land refuses to accept the same, the lessee must deposit such amount with the Superintendent by check payable to the Bureau of Indian Affairs. The Superintendent must thereupon advise the owner of the surface of the land by mail at his/her last known address that the commencement money is being held for payment to him upon his/her written request.
The lessee must pay fees for each tank sited at the rate of $500 per tank, except that:
(a) No payment is due for a tank temporarily set on a well location site for drilling, completing, or testing; and
(b) The sum to be paid for a tank occupying an area more than 2500 square feet will be agreed upon between the surface owner and lessee or, on failure to agree, the same will be determined by arbitration as provided by § 226.41.
(a) The lessee or its authorized representative or geophysical permittee must pay for all damages to growing crops, any improvements on the lands, and all other surface damages as may be occasioned by operations. Commencement money will be credited toward the settlement of the total damages occasioned by the drilling and completion of the well for which it was paid. Such damages must be paid to the owner of the surface and by him apportioned among the parties interested in the surface, whether as owner, surface lessee, or otherwise, as the parties may mutually agree or as their interests may appear. If the lessee or its authorized representative and surface owner are unable to agree concerning damages, the same will be determined by arbitration as provided by § 226.41.
(b) Surface owners must notify their lessees or tenants of the regulations in this part and of the necessary procedure to follow in all cases of alleged damages. If so authorized in writing, surface lessees or tenants may represent the surface owners.
(c) In settlement of damages on restricted land, all sums due and payable must be paid to the Superintendent for credit to the account of the Indian entitled thereto. The Superintendent will make the apportionment between the Indian landowner or owners and surface lessee of record.
(d) Any person claiming damages to an interest in any leased tract, must furnish to the Superintendent a statement in writing showing its claimed interest. Failure to furnish such statement will constitute a waiver of notice and estop said person from claiming any part of such damages after the same has been disbursed.
Where the surface owner or his/her lessee suffers damage due to the oil and gas operations and/or marketing of oil or gas by lessee or its authorized representative, the procedure for recovery is as follows:
(a) The party or parties aggrieved will, as soon as possible after the discovery of any damages, serve written notice to lessee or its authorized representative. The written notice must describe the nature and location of the alleged damages, the date of occurrence, the names of the party or parties causing said damages, and the amount of damages. This requirement does not limit the time within which action may be brought in the courts to less than the 90-day period allowed by section 2 of the Act of March 2, 1929 (45 Stat. 1478, 1479).
(b) If the alleged damages are not adjusted at the time of such notice, the lessee or its authorized representative must try to adjust the claim with the party or parties aggrieved within 20 calendar days from receipt of the notice. If the claimant is the owner of restricted property and a settlement results, a copy of the settlement agreement must be submitted to the Superintendent for approval. If the settlement agreement concerning the restricted property is approved by the Superintendent, payment must be made to the Superintendent for the benefit of said claimant.
(c) If the parties fail to adjust the claim within the 20 calendar days
(d) As soon as the third arbitrator is appointed, the arbitrators must meet; hear the evidence and arguments of the parties; and examine the lands, crops, improvements, or other property alleged to have been injured. Within 10 calendar days they will render their decision as to the amount of the damage due. The arbitrators will be disinterested persons. The fees and expenses of the third arbitrator must be borne equally by the claimant and the lessee or its authorized representative. Each lessee or its authorized representative and claimant must pay the fee and expenses for the arbitrator appointed by him.
(e) When an act of an oil or gas lessee or its authorized representative results in injury to both the surface owner and his/her lessee, the parties aggrieved must join in the appointment of an arbitrator. Where the injury complained of is chargeable to more than one oil or gas lessee, or its authorized representative, all such chargeable lessees or representatives must join in the appointment of an arbitrator.
(f) Any two of the arbitrators may make a decision as to the amount of damage due. The decision must be in writing and served forthwith upon the parties in interest. Each party has 90 calendar days from the date the decision is served in which to file an action in a court of competent jurisdiction. If no such action is filed within said time and the award is against the lessee or its authorized representative, he/she must pay the same, together with interest at an annual rate established for the Internal Revenue Service from date of award, within 10 calendar days after the expiration of said period for filing an action.
(g) The lessee or its authorized representative must file with the Superintendent a report on each settlement agreement, setting out the nature and location of the damage, date, and amount of the settlement, and any other pertinent information.
(a) The lessee must put into marketable condition at no cost to the lessor, all oil, gas, and other marketable products produced from the leased land.
(b) Where oil accumulates in a pit, such oil must either be:
(1) Recirculated through the regular treating system and returned to the stock tanks for sale; or
(2) Pumped into a stock tank without treatment and measured for sale in the same manner as from any sales tank in accordance with applicable orders and notices.
(c) In the absence of prior approval from the Superintendent, no oil may be pumped into a pit except in an emergency. Each such pumping occurrence must be reported to the Superintendent and the oil promptly recovered in accordance with applicable orders and notices.
(a) Any person engaged in transporting by motor vehicle any oil from any lease site, or allocated to any such lease site, must carry on his/her person, in his/her vehicle, or in his/her immediate control, documentation showing at a minimum; the amount, origin, and intended first purchaser of the oil.
(b) Any person engaged in transporting any oil or gas or other marketable product by pipeline produced from or allocated to any lease site, must maintain documentation showing, at a minimum, the amount, origin, and intended first purchaser of such oil or gas or other marketable product.
(c) On any lease site, any authorized representative of the Superintendent who is properly identified may stop and inspect any motor vehicle that he/she has probable cause to believe is carrying oil produced from or allocated to any such lease site, to determine whether the driver possesses proper documentation for the load of oil.
(d) Any authorized representative of the Superintendent who is properly identified and who is accompanied by an appropriate law enforcement officer, or an appropriate law enforcement officer alone, may stop and inspect any motor vehicle which is not on a lease site if he/she has probable cause to believe the vehicle is carrying oil produced from or allocated to a lease site, to determine whether the driver possesses proper documentation for the load of oil.
(a) All lessees, contractors, drillers, service companies, pipe pulling and salvaging contractors, or other persons, must at all times conduct their operations and drill, equip, operate, produce, plug, and abandon all wells drilled for oil or gas, service wells or exploratory wells (including seismic, core, and stratigraphic holes) in a manner that will prevent pollution and the migration of oil, gas, salt water, or other substance from one stratum into another, including any fresh water bearing formation.
(b) Pits for drilling mud or deleterious substances used in the drilling, completion, recompletion, or workover of any well must be constructed and maintained to prevent pollution of surface and subsurface fresh water. These pits must be enclosed with a fence of at least four strands of barbed wire, or an approved substitute, stretched taut to adequately braced corner posts, unless the surface owner, user, or the Superintendent gives consent to the contrary. Immediately after completion of operations, pits must be emptied, reclaimed, and leveled unless otherwise requested by surface owner or user.
(c) Drilling pits must be adequate to contain mud and other material extracted from wells and must have adequate storage to maintain a supply of mud for use in emergencies.
(d) No earthen pit, except those used in the drilling, completion, recompletion or workover of a well, may be constructed, enlarged, reconstructed or used without approval of the Superintendent. Unlined earthen pits may not be used for the storage of salt water or other deleterious substances.
(e) Deleterious fluids other than fresh water drilling fluids used in drilling or workover operations, which are displaced or produced in well completion or stimulation procedures, including, but not limited to, fracturing, acidizing, swabbing, and drill stem tests, must be collected into a pit lined with plastic of at least 30 mil or a metal or fiberglass tank and maintained separately from above-mentioned drilling fluids to allow for separate disposal. These pits or tanks must be enclosed with a fence of at least four strands of barbed wire, or an approved substitute, stretched taut to adequately braced corner posts, unless the surface owner or the Superintendent gives consent to the contrary. Immediately after completion of operations, tanks must be removed and any pits must be emptied, reclaimed, and leveled unless otherwise requested by surface owner.
(a) The lessee must conduct operations in a manner which protects the mineral resources, other natural resources, and environmental quality. The lessee must comply with the pertinent orders of the Superintendent and other standards and procedures as set forth in the applicable laws, regulations, lease terms and conditions, and the approved drilling plan or subsequent operations plan.
(b) The lessee must exercise due care and diligence to assure that leasehold operations do not result in undue damage to surface or subsurface resources or surface improvements.
(1) All produced water must be disposed of by injection into the subsurface, in approved pits, or by other methods which have been approved by the Superintendent.
(2) Upon the conclusion of operations, the lessee must reclaim the disturbed surface in a manner approved or prescribed by the Superintendent.
(c) All spills or leakages of oil, gas, other marketable products, produced water, toxic liquids, or waste materials, blowouts, fires, personal injuries, and fatalities must be reported by the lessee to the Superintendent as soon as discovered, but not later than the next business day.
(1) The lessee must exercise due diligence in taking necessary measures, subject to approval by the Superintendent, to control and remove pollutants and to extinguish fires.
(2) A lessee's compliance with the requirements of the regulations in this part does not relieve the lessee of the obligation to comply with other applicable laws and regulations.
(d) When required by the Superintendent, a contingency plan must be submitted describing procedures to be implemented to protect life, property, and the environment.
(e) The lessee's liability for damages to third parties is governed by applicable law.
The lessee must perform operations and maintain equipment in a safe and workmanlike manner, including compliance with National Electrical Code for the installation, running, maintenance and use of all electric lines. The lessee must take all precautions necessary to provide adequate protection for the health and safety of life and the protection of property. Such precautions do not relieve the lessee of the responsibility for compliance with other pertinent health and safety requirements under applicable laws or regulations.
The Superintendent, with the consent of the Osage Minerals Council, may grant commercial and noncommercial easements for wells off the leased premises to be used for purposes associated with oil and gas production; provided that the Superintendent notifies or attempts to notify both the surface owner and lessee in writing of their opportunity to meet with and submit information for consideration before a final decision is made. Rents payable to the Osage mineral estate for such easements must be in an amount agreed to by Grantee and the Osage Minerals Council, subject to the approval of the Superintendent. The Grantee is responsible for all damages resulting from the use of such wells and settlement for any damages must be made as provided in § 226.41.
The lessee or his/her contractor may, with the approval of the Superintendent, use water from streams and natural water courses to the extent that such use does not diminish the supply below the requirements of the surface owner from whose land the water is taken. Similarly, the lessee or his/her contractor may use water from reservoirs formed by the impoundment of water from such streams and natural water courses, if such use does not exceed the quantity to which they originally would have been entitled had the reservoirs not been constructed. The lessee or his/her contractor may install necessary lines and other equipment within the Osage mineral estate to obtain such water. Any damage resulting from such installation must be settled as provided in § 226.41.
Prior to drilling, an oil or gas lessee must notify the other lessees of its intent to drill. When an oil lessee in drilling a well encounters a formation or zone having indications of possible gas production, or the gas lessee in drilling a well encounters a formation or zone having indication of possible oil production, the lessee must immediately notify the other lessee and the Superintendent. The lessee drilling the well must obtain all information that a prudent lessee would utilize to evaluate the productive capability of such formation or zone.
(a) Gas well to be turned over to gas lessee. If an oil lessee drills a gas well, it must, without removing from the well any of the casing or other equipment, immediately shut the well in and notify the gas lessee and the Superintendent.
(1) If the gas lessee does not, within 45 calendar days after receiving notice and determining the cost of drilling, elect to take over such well and reimburse the oil lessee the cost of drilling, including all damages paid and the cost in-place of casing, tubing, and other equipment, the oil lessee must immediately confine the gas to the original stratum. The disposition of such well and the production therefrom will then be subject to the approval of the Superintendent.
(2) If the oil lessee and gas lessee cannot agree on the cost of the well, the Superintendent will apportion the cost between the oil and gas lessees.
(b) Oil well to be turned over to oil lessee. If a gas lessee drills an oil well, then it must immediately, without removing from the well any of the casing or other equipment, notify the oil lessee and the Superintendent.
(1) If the oil lessee does not, within 45 calendar days after receipt of notice and cost of drilling, elect to take over the well, it must immediately notify the gas lessee. From that point, the Superintendent must approve the disposition of the well, and any gas produced from it.
(2) If the oil lessee chooses to take over the well, it must pay to the gas lessee:
(i) The cost of drilling the well, including all damages paid; and
(ii) The cost in place of casing and other equipment.
(3) If the oil lessee and the gas lessee cannot agree on the cost of the well, the Superintendent will apportion the cost between the oil and gas lessees.
(c) Lands not leased. If a gas lessee drills an oil well upon lands not leased for oil purposes or vice versa, the Superintendent may, until such time as said lands are leased, permit the lessee who drilled the well to operate and market the production therefrom. When said lands are leased, the lessee who drilled and completed the well must be reimbursed by the oil or gas lessee for the cost of drilling said well, including all damages paid and the cost of in-place casing, tubing, and other equipment. If the lessee does not elect to take over said well as provided above, the disposition of such well and the production therefrom will be determined by the Superintendent. In the event the oil lessee and gas lessee cannot agree on the cost of the well, such cost will be apportioned between
The term “cost of drilling” as applied where one lessee takes over a well drilled by another, includes all reasonable, usual, necessary, and proper expenditures. A list of expenses mentioned in this section must be presented to proposed purchasing lessee within 10 calendar days after the completion of the well. In the event of a disagreement between the parties as to the charges assessed against the well that is to be taken over, such charges will be determined by the Superintendent.
All gas used in accordance with this section must first be odorized and treated in accordance with industry standards for safe use.
(a)
(b)
(2) Any member of the Osage Nation residing in Osage County and outside a corporate city is entitled to the use at his/her own expense of not to exceed 400,000 cubic feet of gas per calendar year for his/her principal residence at a rate not to exceed the amount paid by a gas purchaser plus 10 percent. This requirement is subject to the determination by the Superintendent that gas in sufficient quantities is available above that needed for lease operation and that no waste would result. In the absence of a gas purchaser, the amount to be paid by the Tribal member will be determined by the Superintendent. Gas delivered to Tribal members is not royalty free. The Tribal member is to furnish all necessary material and labor for such connection to the lessee's gas system, and must maintain his/her own lines. The use of such gas is at the risk of the Tribal member at all times.
(3) Gas furnished by the lessee under paragraphs (b)(1) and (2) of this section may be terminated only with the approval of the Superintendent. A written application for termination must be made to the Superintendent showing justification.
No well may be permanently abandoned until it is no longer producing oil and/or gas in paying quantities and such a showing has been demonstrated to the satisfaction of the Superintendent. The lessee may not shut down, abandon, or otherwise discontinue the operation or use of any well for any purpose without the written approval of the Superintendent. All applications for such approval must be submitted to the Superintendent on forms furnished by the Superintendent.
(a) An application for authority to permanently shut down or discontinue the use or operation of a well must set forth the justification, the means by which the well bore is to be protected, and the contemplated eventual disposition of the well. The method of conditioning such well is subject to the approval of the Superintendent.
(b) Prior to permanent abandonment of any well, the oil lessee or the gas lessee, as the case may be, must offer the well to the other for his/her recompletion or use under such terms as may be mutually agreed upon but not in conflict with the regulations. Failure of the lessee receiving the offer to reply within 10 calendar days after receipt thereof will be deemed a rejection of the offer. If, after indicating acceptance, the two parties cannot agree on the terms of the offer within 30 calendar days, the disposition of such well will be determined by the Superintendent.
(c) The Superintendent is authorized to shut in a lease when the lessee fails to comply with the terms of the lease, the regulations, and/or orders of the Superintendent.
(a) Upon termination of a lease, permanent improvements, unless otherwise provided by written agreement with the surface owner and filed with the Superintendent, remain a part of said land and become the property of the surface owner upon termination of the lease. This rule does not apply to personal property, including but not limited to, tools, tanks, pipelines, pumping and drilling equipment, derricks, engines, machinery, tubing, and the casings of all wells. When any lease terminates, all such personal property must be removed within 90 calendar days or such reasonable extension of time as may be granted by the Superintendent. Otherwise, the ownership of all casings reverts to the lessor and all other personal property and permanent improvements to the surface owner. This should not be construed to relieve the lessee of responsibility for removing any such personal property or permanent improvements from the premises if required by the Superintendent and restoring the premises as nearly as practicable to the original state.
(b) Upon termination of lease for cause. When there has been a termination for cause, the lessor is entitled and authorized to take immediate possession of the lease premises and all permanent improvements and all other equipment necessary for the operation of the lease.
(c) Wells to be abandoned must be promptly plugged as prescribed in writing by the Superintendent. Applications to plug must include a statement affirming compliance with § 226.52 and must set forth reasons for plugging, a detailed statement of the proposed work, including the kind, location, and length of plugs (by depth), plans for mudding and cementing, testing, parting and removing casing, and any other pertinent information. The lessee must submit a written application for authority to plug a well.
(d) The lessee must plug and fill all dry or abandoned wells in a manner to confine the fluid in each formation bearing fresh water, oil, gas, salt water, and other minerals, and to protect it against invasion of fluids from other sources. Mud-laden fluid, cement, and other plugs must be used to fill the hole from bottom to top.
(1) If a satisfactory agreement is reached between the lessee and the surface owner, subject to the approval of the Superintendent, the lessee may condition the well for use as a fresh
(2) The manner in which plugging material will be introduced and the type of material used is subject to the approval of the Superintendent.
(3) Within 10 calendar days after plugging, the lessee must file with the Superintendent a complete report of the plugging of each well.
(4) When any well is plugged and abandoned, the lessee must, within 90 calendar days, clean up the premises around such well to the satisfaction of the Superintendent.
(a) The lessee must comply with all orders or instructions issued by the Superintendent. The Superintendent or his/her representative may enter upon the leased premises for the purpose of inspection.
(b) The lessee must keep a full and correct account of all operations, receipts, and disbursements and make reports thereof, as required.
(c) The lessee's books and records must be available to the Superintendent for inspection.
(d) The lessee must maintain and preserve records for 6 years from the day on which the transaction recorded occurred unless the Superintendent notifies the lessee of an audit or investigation involving the records and that they must be maintained for a longer period. When an audit or investigation is underway, records must be maintained until the lessee is released in writing from the obligation to maintain the records.
(a) Before actual drilling or development operations are commenced on leased lands, the lessee or assignee, if not a resident of the State of Oklahoma, must appoint a local or resident representative within the State of Oklahoma on whom the Superintendent may serve notice or otherwise communicate in securing compliance with the regulations in this part, and notify the Superintendent of the name and post office address of the representative appointed.
(b) Where several parties own a lease jointly, the parties must designate one representative or agent whose duties are to act for all parties concerned.
(c) The lessee must appoint a substitute to serve in his/her stead in the event of the incapacity or absence from the State of Oklahoma of such designated local or resident representative. In the absence of such representative or appointed substitute, any employee of the lessee upon the leased premises or person in charge of drilling or related operations thereon will be considered the representative of the lessee for the purpose of service of orders or notices as herein provided.
(a) The lessee must keep accurate and complete records of the drilling, redrilling, deepening, repairing, treating, plugging, or abandonment of all wells. These records must show:
(1) All the formations penetrated, the content and character of the oil, gas, other marketable product, or water in each formation, and the kind, weight, size, landed depth, and cement record of casing used in drilling each well;
(2) The record of drill-stem and other bottom hole pressure or fluid sample surveys, temperature surveys, directional surveys, and the like;
(3) The materials and procedure used in the treating or plugging of wells or in preparing them for temporary abandonment; and
(4) Any other information obtained in the course of well operation.
(b) The lessee must take such samples and make such tests and surveys as may be required by the Superintendent to determine conditions in the well or producing reservoir and to obtain information concerning formations drilled, and furnish such reports as required in the manner and method specified by the Superintendent.
(c) Within 10 calendar days after completion of operations on any well, the lessee must transmit to the Superintendent:
(1) All applicable information on forms furnished by the Superintendent;
(2) A copy of the electrical, mechanical or radioactive log, or other types of surveys of the well bore; and
(3) The core analysis obtained from the well.
(d) The lessee must also submit other reports and records of operations as may be required and in the manner, form, and method prescribed by the Superintendent.
(e) The lessee must measure production of oil, gas, other marketable product, and water from individual wells at reasonably frequent intervals to the satisfaction of the Superintendent.
(f) Upon request and in the manner, form and method prescribed by the Superintendent, the lessee must furnish a plat showing the location, designation, and status of all wells on the leased lands, together with such other pertinent information as the Superintendent may require.
The lessee may not drill within 300 feet of the boundary line of leased lands, or locate any well or tank within 200 feet of any public highway, any established watering place, or any building used as a dwelling, granary, or barn, except with the written permission of the Superintendent. Failure to obtain advance written permission from the Superintendent will subject the lessee to termination of the lease and/or plugging of the well.
The lessee must clearly and permanently mark all wells and tank batteries in a conspicuous place with the number, legal description, operator's name, lessee's name and telephone number, and must take all necessary precautions to preserve these markings.
The lessee must, to the satisfaction of the Superintendent, take all proper precautions and measures to prevent damage or pollution of oil, gas, fresh water, or other mineral bearing formations.
(a) In drilling operations in fields where high pressures, lost circulation, or other conditions exist which could result in blowouts, the lessee must install an approved gate valve or other controlling device in proper working condition for use until the well is completed. At all times, preventative measures must be taken in all well operations to maintain proper control of subsurface strata.
(b)
(c)
(d)
(e)
(f) The lessee must conduct activities in accordance with the standards and procedures set forth in Bureau of Land Management Onshore Oil and Gas Order No. 6, Hydrogen Sulfide Operations.
(a) The lessee must conduct all operations in a manner that will prevent waste of oil and gas and other marketable products and must not wastefully utilize oil or gas or other marketable products.
(b) The Superintendent has the authority to impose such requirements as he deems necessary to prevent waste of oil and gas and other marketable products and to promote the greatest ultimate recovery of oil and gas and other marketable products.
(c) For purposes of this section, waste includes, but is not limited to, the inefficient, excessive or improper use or dissipation of reservoir energy which would reasonably reduce or diminish the quantity of oil or gas or other marketable product that might ultimately be produced, or the unnecessary or excessive surface loss or destruction, without beneficial use, of oil, gas or other marketable product.
(a) All production run from the lease must be measured according to methods and devices approved by the Superintendent. Facilities suitable for containing and measuring accurately all crude oil produced from the wells must be provided by the lessee and must be located on the leasehold unless otherwise approved by the Superintendent. The lessee must furnish to the Superintendent a copy of 100-percent capacity tank table for each tank. Meters and installations for measuring oil must be approved.
(b) The lessee must ensure that each Lease Automatic Custody Transfer (LACT) meter is inspected, calibrated, and adjusted at least twice in each calendar year. Each inspection, calibration, and adjustment must be separated by a period of not less than five months. The lessee must give the Superintendent at least 48 hours prior notice of all LACT meter inspections, calibrations, and adjustments. The Superintendent has the right to witness, unannounced, all LACT meter inspections, calibrations, and adjustments. The lessee must fully cooperate with such witnessing. If the Superintendent is not present, then he may request records relating to all LACT meter inspections, calibrations, and adjustments. Repeated failures to comply with this subparagraph will render the lease subject to termination after consultation with the Osage Minerals Council.
(c) When a tank of oil is ready for removal by the purchaser, the lessee must ensure that the Superintendent is informed of that fact before the purchaser is so informed via an electronic or telephonic method established by the Superintendent for reporting pursuant to this subparagraph. Repeated failures to inform the Superintendent will render the lease subject to termination after consultation with the Osage Minerals Council.
(d) The Superintendent has the right to witness all gaugings, unannounced, on each lease. The lessee must fully cooperate with such gaugings and repeated failures to comply will render the lease subject to termination after consultation with the Osage Minerals Council.
(a) All gas required to be measured must be measured in accordance with the standards, procedures, and practices set forth in Bureau of Land Management Onshore Oil and Gas Order No. 5, Measurement of Gas. To the extent that Onshore Oil and Gas Order 5 conflicts with any provision of these regulations, these regulations control.
(b) All gas, required to be measured, must be measured by orifice meter unless otherwise agreed to in writing by the Superintendent. All gas meters must be approved by the Superintendent and installed at the expense of the lessee or purchaser at such places as may be agreed to in writing by the Superintendent. For computing the volume of all gas produced, sold or subject to royalty, the standard of pressure is 14.65 pounds to the square inch, and the standard of temperature is 60 degrees F. All measurements of gas must be adjusted by computation to these standards, regardless of the pressure and temperature at which the gas was actually measured, unless otherwise authorized in writing by the Superintendent.
(c) The lessee must ensure that each meter is inspected, calibrated, and adjusted at least twice in each calendar year. Each inspection, calibration and adjustment must be separated by a period of not less than five months apart. The lessee must give the Superintendent at least 48 hours prior notice of all meter inspections, calibrations, and adjustments. The Superintendent has the right to witness, unannounced, all meter inspections, calibrations, and adjustments. The lessee must fully cooperate with such witnessing. If the Superintendent is not present, he may request records relating to all meter inspections, calibrations, and adjustments. Repeated failures to comply with this subparagraph will render the lease subject to termination after consultation with the Osage Minerals Council.
The lessee must not use raw natural gas from a distinct or separate stratum for the purpose of flowing or lifting oil, except where the lessee has an approved right to both the oil and the gas, and then only with the approval of the Superintendent of such use and of the manner of its use.
(a)
(b)
(1) All lines entering or leaving oil storage tanks must have valves capable of being effectively sealed during the production and sales operations unless otherwise modified by other subparagraphs of this paragraph. Any equipment needed for effective sealing, excluding the seals, must be located at the site. For a minimum of 6 years the lessee must maintain a record of seal numbers used and must document on which valves or connections they were used as well as when they were installed and removed. The site facility diagram(s) must show which valves will be sealed in which position during both the production and sales phases of operation.
(2) Each LACT system must employ meters that have non-resettable totalizers. There may not be any by-pass piping around the LACT. All components of the LACT that are used for volume or quality determinations of the oil must be effectively sealed. For systems where production may only be removed through the LACT, no sales or equalizer valves need be sealed. However, any valves which may allow access for removal of oil before measurement through the LACT must be effectively sealed.
(3) There must not be any by-pass piping around gas meters. Equipment which permits changing the orifice plate without bleeding the pressure off the gas meter run is not considered a by-pass.
(4) For oil measured and sold by hand gauging, all appropriate valves must be sealed during the production or sales phase, as applicable.
(5) Circulating lines having valves which may allow access to remove oil from storage and sales facilities to any other source except through the treating equipment back to storage must be effectively sealed as near the storage tank as possible.
(6) The lessee, with reasonable frequency, must inspect all leases to determine production volumes and that the minimum site security standards are being met. The lessee must retain records of such inspections and measurements for 6 years from generation. Such records and measurements must be available to the Superintendent upon request.
(7) Any lessee may request the Superintendent to approve a variance from any of the minimum standards prescribed by this section. The variance request must be submitted in writing to the Superintendent who may consider such factors as regional oil field facility characteristics and fenced, guarded sites. The Superintendent may approve a variance if the proposed alternative will ensure measures equal to or in excess of the minimum standards provided in paragraph (b) of this section will be put in place to detect or prevent internal and external theft, and will result in proper production accountability.
(c)
(2) The lessee must retain the plan and notify the Superintendent of its completion and which leases, units, and communitized areas are involved. Such notification is due at the time the plan is completed as required by paragraph (c)(1) of this section. Such notification must include the location and normal business hours of the office where the plan will be maintained. Upon request, plans must be made available to the Superintendent.
(3) The plan must include the frequency and method of the lessee's inspection and production volume recordation. The Superintendent may, upon examination, require adjustment of the method or frequency of inspection.
(d)
(2) No format is prescribed for facility diagrams. They are to be prepared on 8
(3) A site facility diagram must accurately reflect the actual conditions at the site and must, commencing with the header if applicable, clearly identify the vessels, piping, metering system, and pits, if any, which apply to the handling and disposal of oil, gas and water. The diagram must indicate which valves must be sealed and in what position during the production or sales phase. The diagram must clearly identify the lease on which the facility is located and the site security plan to which it is subject, along with the location of the plan.
Lessees must make a complete report to the Superintendent of all accidents environmental or otherwise, fires, or acts of theft and vandalism occurring on the leased premises as soon as discovered, but not later than the next business day. Said report must include an estimate of the volume of oil involved. Lessees also are expected to report such thefts within one business day to local law enforcement agencies, internal company security. Lessees must also notify or attempt to notify the surface owner or his/her designated agent in writing by U.S. mail of any such incident covered under this section.
Unless otherwise set forth in a lease, violations of any of the terms or conditions of any lease or of the regulations in this part will subject the lease to termination by the Superintendent, or Lessee to a fine of not more than $500 per day for each day of such violation or noncompliance with the orders of the Superintendent, or to both such fine and termination of the lease. Fines not received within 10 business days after notice of the decision will be subject to late charges at the rate of not less than 1
Unless otherwise set forth in a lease, in lieu of the penalties provided under § 226.67, penalties may be imposed by
(a) For failure to obtain permission to start operations required by § 226.34(a), $50 per day.
(b) For failure to file records required by § 226.56, $50 per day until compliance is met.
(c) For failure to mark wells or tank batteries as required by § 226.58, $50 per day for each well or tank battery.
(d) For failure to construct and maintain pits as required by § 226.44(b)–(d), $50 for each day after operations are commenced on any well until compliance is met.
(e) For failure to comply with § 226.60 regarding control of wells, $100 per day.
(f) For failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well, as required by §§ 226.34(b)–(c) and 226.49, $200 per day.
(g) For failure to properly care for and dispose of deleterious fluids as provided in § 226.44(e), $500 per day until compliance is met.
(h) For failure to file plugging reports as required by § 226.53(d) and for failure to file reports as required by § 226.26, $50 per day for each violation until compliance is met.
(i) For failure to perform or start an operation within 5 calendar days after ordered by the Superintendent in writing under authority provided in this part, if said operation is thereafter performed by or through the Superintendent, the actual cost of performance thereof, plus 25 percent.
Any person, firm or corporation aggrieved by any decision or order issued by or under the authority of the Superintendent, by virtue of the regulations in this part, may appeal pursuant to 25 CFR part 2.
Notices and orders issued by the Superintendent to the representative are binding on the lessee. The Superintendent may in his/her discretion increase the time allowed in his/her orders and notices.
The collections of information in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
Office of Postsecondary Education, Department of Education.
Final priorities, requirements, selection criterion, and definitions.
The Assistant Secretary for Postsecondary Education announces priorities, requirements, a selection criterion, and definitions under the First in the World (FITW) program. The Assistant Secretary may use these priorities, requirements, selection criterion, and definitions for competitions in fiscal year (FY) 2015 and later years.
These priorities, requirements, selection criterion, and definitions will enable the Department to focus the FITW program on identified barriers to student success in postsecondary education and advance the program's purpose to build evidence for what works in postsecondary education through development, evaluation, and dissemination of innovative strategies to support students who are at risk of failure in persisting in and completing their postsecondary programs of study.
These priorities, requirements, selection criterion, and definitions are effective June 10, 2015.
Frank Frankfort, U.S. Department of Education, 1990 K Street NW., Room 6166, Washington, DC 20006. Telephone: (202) 502–7513 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.
Today, even though college enrollment has increased by 50 percent since 1990, and despite the importance of a postsecondary education to financial security for American families, only 40 percent of Americans hold a postsecondary degree.
Recognizing these factors, President Obama set a goal for the country that America will once again have the highest proportion of college graduates in the world. To support this national effort, the Administration has outlined a comprehensive agenda that includes expanding opportunity and increasing quality at all levels of education, from early learning through higher education. The FITW program is a key part of this agenda.
Unlike in previous generations, adult learners, working students, part-time students, students from low-income backgrounds, students of color, and first-generation students now make up the majority of students in college.
A key element of the FITW program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of evidence supporting the efficacy of the proposed project and the scope of its potential impact. In this program, applicants proposing practices supported by limited evidence can receive smaller grants (Development grants) that support the development and initial evaluation of innovative but untested strategies. Applicants proposing practices supported by evidence from rigorous evaluations can receive larger grants (Validation and Scale-up grants), in amounts commensurate to the level of supporting evidence and intended scope, for implementation at greater scale to test whether initially successful strategies remain effective when adopted in varied locations and with large and diverse groups of students. This structure provides incentives for applicants to build evidence of the effectiveness of their proposed projects and to address the barriers to serving large numbers of students within institutions and across institutions, systems, States, regions, or the Nation.
All FITW grantees are required to use part of their budgets to conduct independent evaluations (as defined in this notice) of their projects. This ensures that projects funded under the FITW program contribute significantly to increasing the amount of rigorous research available to practitioners and policymakers about which practices work, for which types of students, and in what contexts.
20 U.S.C. 1138–1138d.
We published the notice of proposed priorities, requirements, selection criterion, and definitions (NPP) for this program in the
There are some differences between the proposed priorities, requirements, definitions, and selection criterion and these final priorities, requirements, definitions, and selection criterion. We discuss significant changes from the NPP in the
Another commenter acknowledged that developmental education is a barrier for many students, but added that students encounter challenges even after they have progressed to credit-bearing coursework. The commenter recommended adding a priority to address removing barriers to credit accumulation and progression. As proposed by the commenter, this priority would focus on institutional policies and programs that could be improved to promote completion and could include subparts on redesigning gateway courses, particularly in mathematics, and academic mapping.
As noted in the NPP, in any FITW competition, we may include priorities from the Department's notice of final supplemental priorities and definitions for discretionary grant programs, published in the
We also do not consider it necessary to create a priority that focuses on barriers to credit accumulation because many of the final priorities encourage applicants to propose new models for promoting degree progression. For example, we include a subpart under Priority 5 (Facilitating Pathways to Credentialing and Transfer) that focuses on credentialing pathways.
In addition, we note that Requirement 5 (Independent Evaluation) requires all grantees of the FITW program to use part of their budgets to conduct an independent evaluation of their projects. This ensures that projects contribute significantly to improving the information available to practitioners and policymakers about which practices work, for which types of students, and in what contexts. The results of these evaluations will be available to the public. Additionally, two of the performance measures established for the FITW program are cost per participant and cost per successful outcome, so the Department will collect data from grantees on these measures.
Finally, since the ultimate goal is student progress into credit-bearing courses, many pathways could be proposed.
In response to the comments suggesting that this priority be used as an absolute priority, we note that the Department has the discretion to use any of these priorities in future FITW competitions. The Department may choose which, if any, of the priorities or subparts are appropriate for a particular competition. If the Department chooses to use these priorities, it also has discretion to decide how they should be designated (
A second commenter also supported the addition of holistic advising models in Priority 3. This commenter recommended that the Department add a focus on collaboration with employers and other workforce partners, including an explicit mention of work-based learning opportunities. The commenter suggested that Priority 3 include the following strategies: Career counseling during initial advising sessions, student supports focused on non-cognitive factors and students' external responsibilities, the use of credential pathways or maps, peer-to-peer supports, cohort-based approaches, and case management approaches.
We are not certain what the commenter intends by referring to credits that are applicable rather than simply transferrable. However, the aim of Priority 5 is to ensure that students accelerate progress towards a degree or credential. Thus, we assume that strategies to improve credit transfer would address how credits would be applied towards this end.
Another commenter proposed, in lieu of the definition for MSI, a new definition for Institutions with Large-Scale Impact for Minority Students. This proposed definition would refer to two-year or four-year institutions with sufficient capacity to affect large-scale change for Black, Latino, or American Indian students. The commenter proposed that an institution would be considered to have sufficient capacity under this definition if it enrolled at least 3,000 Black, Latino, or American Indian students.
The Secretary gives priority to:
(a) Projects designed to improve student success in developmental education or accelerate student progress into credit-bearing postsecondary courses; or
(b) Projects designed to improve student success in developmental education or accelerate student progress into credit-bearing postsecondary courses through one or more of the following:
(i) Identifying and treating academic needs prior to postsecondary enrollment, including while in middle or high school, through strategies such as partnerships between K–12 and postsecondary institutions;
(ii) Diagnosing students' developmental education needs at the time of or after postsecondary enrollment, such as by developing alternatives to single measure placement strategies, and identifying specific content gaps in order to customize instruction to an individual student's needs;
(iii) Offering alternative pathways in mathematics, such as non-Algebra based coursework for non-math and science fields;
(iv) Accelerating students' progress in completing developmental education, through strategies such as modularized, fast-tracked, or self-paced courses or placing students whose academic performance is one or more levels below that required for credit-bearing courses into credit-bearing courses with academic supports;
(v) Redesigning developmental education courses or programs through strategies such as contextualization of developmental coursework together with occupational or college-content coursework; and
(vi) Integrating academic and other supports for students in developmental education.
The Secretary gives priority to:
(a) Projects designed to improve teaching and learning; or
(b) Projects designed to improve teaching and learning through one or more of the following:
(i) Instruction-level tools or strategies such as adaptive learning technology, educational games, personalized learning, active- or project-based learning, faculty-centered strategies that systematically improve the quality of teaching, or multi-disciplinary efforts focused on improving instructional experiences.
(ii) Program-level strategies such as competency-based programs that are designed with faculty, industry, employer, and expert engagement, use rigorous methods to define competencies, and utilize externally validated assessments, online or blended programs, or joint offering of programs across institutions.
(iii) Institution-level tools or strategies such as faculty-centered strategies to improve teaching across an institution, use of open educational resources, or tailoring academic content and delivery to serve the needs of non-traditional students.
The Secretary gives priority to:
(a) Projects designed to improve the supports or services provided to students prior to or during the students' enrollment in postsecondary education; or
(b) Projects designed to improve the supports or services provided to students prior to or during the students' enrollment in postsecondary education through one or more of the following:
(i) Integrating student support services, including with academic advising and instruction.
(ii) Individualizing or personalizing support services, such as advising, coaching, tutoring, or mentoring, to students and their identified needs using tools or strategies such as predictive analytics to identify students who may need specific supports, or behavioral interventions used to provide timely, relevant, and actionable information for students at critical points such as when they may be at risk of dropping out.
(iii) Connecting students to resources or services other than those typically provided by postsecondary institutions, such as providing assistance in accessing government benefits, transportation assistance, medical, health, or nutritional resources and services, child care, housing, or legal services.
(iv) Utilizing technology such as digital messaging to provide supports or services systematically.
The Secretary gives priority to:
(a) Projects that support the development and use of externally validated assessments of student learning and stated learning goals; or
(b) Projects that support the development and use of externally validated assessments of student learning and stated learning goals through one or more of the following:
(i) Alternative assessment tools or strategies such as micro- or competency-based assessments, assessments embedded in curriculum, or simulations, games, or other technology-based assessment approaches.
(ii) Professional development or training of faculty and staff on the approaches to developing, using, and interpreting assessments.
(iii) Combining or sequencing assessments from multiple sources to strengthen diagnostic capabilities.
(iv) Aligning assessments across sectors and institutions, such as across kindergarten through grade 12 and postsecondary education systems or across two-year and four-year institutions, to improve college readiness and content delivery.
(v) Open-source assessments.
The Secretary gives priority to:
(a) Projects designed to develop and implement systems and practices to capture and aggregate credit or other evidence of knowledge and skills towards postsecondary degrees or credentials; or
(b) Projects designed to develop and implement systems and practices to capture and aggregate credit or other evidence of knowledge and skills towards postsecondary degrees or credentials through one or more of the following:
(i) Seamless transfer of credits between postsecondary institutions.
(ii) Validation and transfer of credit for learning or learning experiences from non-institutional sources.
(iii) Alternate credentialing or badging frameworks.
(iv) Opportunities for students to earn college credits prior to postsecondary enrollment, such as through dual enrollment, dual degree, dual admission, or early college programs.
The Secretary gives priority to:
(a) Projects designed to improve the effectiveness of financial aid; or
(b) Projects designed to improve the effectiveness of financial aid through one or more of the following:
(i) Counseling, advising, creation of information and resources, and other support activities on higher education financing and financial literacy delivered by financial aid offices or integrated with other support services provided by institutions, including on student loan repayment options such as income-driven repayment plans and public service loan forgiveness and debt management.
(ii) Personalized approaches to financial aid delivery, counseling, advising, and other support activities, which may include early warning systems, use of predictive analytics, need-based aid, emergency aid, or bonuses or other incentives for successful outcomes such as on-time academic progress and completion.
The Secretary gives priority to projects that use low-cost tools or strategies, such as those that use technology, that result in a high impact on student outcomes.
The Secretary gives priority to projects designed to improve student outcomes at Minority-Serving Institutions (as defined in this notice).
The Secretary gives priority to projects that involve consortia of institutions, including across a college or university system, and partnerships with leading experts that are implemented at multiple sites with large sample sizes to allow for more rapid development, evaluation, and scaling of practices determined to be effective.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Assistant Secretary for Postsecondary Education establishes the following requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.
1.
(a) Grantees must implement projects designed to improve outcomes of high-need students (as defined in this notice) in postsecondary education; or
(b) Grantees must implement projects designed to improve one or more of the following outcomes of high-need students (as defined in this notice) in postsecondary education:
(i) Persistence.
(ii) Academic progress.
(iii) Time to degree.
(iv) Completion.
2.
An institution of higher education, combinations of such institutions, and other public and private nonprofit institutions and agencies.
The Secretary will announce the eligible applicants in the NIA.
3.
4.
(a) An application for a Development grant must be supported by one of the following:
(i) Evidence of promise (as defined in 34 CFR 77.1(c)).
(ii) Strong theory (as defined in 34 CFR 77.1(c)).
(iii) Evidence of promise or strong theory.
The Secretary will announce in the NIA which evidence standard will apply to a Development grant in a given competition. Under (a)(iii), applicants must identify whether their application is supported by evidence of promise or strong theory.
(b) An application for a Validation grant must be supported by moderate evidence of effectiveness (as defined in 34 CFR 77.1(c)).
(c) An application for a Scale-up grant must be supported by strong evidence of effectiveness (as defined in 34 CFR 77.1(c)).
(d) The Secretary may require that an application for a Development grant, Validation grant, or Scale-up grant must be supported by one or more of the following levels of sample size:
(i) Large sample (as defined in 34 CFR 77.1(c)).
(ii) Multi-site sample (as defined in 34 CFR 77.1(c)), such as at multiple institutions.
(iii) Scaled multi-site sample, such as across a system of institutions, across institutions in a State, a region, or nationally, or across institutions in a labor market sector.
The Secretary will announce in the NIA which sample size standards will apply to each type of FITW grant (Development, Validation, or Scale-up) that is available.
(e) Where evidence of promise, moderate evidence of effectiveness, or strong evidence of effectiveness is required to receive a grant, an applicant's project must propose to implement the core aspects of the process, product, strategy, or practice from the supporting study as closely as possible. Where modifications to a cited process, product, strategy, or practice will be made to account for student or institutional characteristics, resource limitations, or other special factors or to address deficiencies identified by the cited study, the applicant must provide a justification or basis for the modifications. Modifications may not be proposed to the core aspects of any cited process, product, strategy, or practice.
5.
(a) The grantee must conduct an Independent Evaluation (as defined in this notice) of its project. The evaluation must estimate the impact of the FITW-supported practice (as implemented at the proposed level of scale) on a relevant outcome (as defined in 34 CFR 77.1(c)).
(b) The grantee must make broadly available, digitally and free of charge, through formal (
(c) The grantee and its independent evaluator must agree to cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor, including any technical assistance provided to ensure that the evaluation design meets the required evaluation standards, and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation and provide the updated evaluation plan to the Department. All of these updates must be consistent with the scope and objectives of the approved application.
6.
(i) What Works Clearinghouse Evidence Standards (as defined in 34 CFR 77.1(c)) without reservations; or
(ii) What Works Clearinghouse Evidence Standards (as defined in 34 CFR 77.1(c)) with reservations.
The Secretary will announce in the NIA the evaluation standard(s) that will apply to each type of FITW grant (Development, Validation, or Scale-up) that is available.
7.
8.
9.
The Assistant Secretary for Postsecondary Education establishes the following selection criterion for evaluating an application under this program. We may apply this criterion or any of the selection criteria from 34 CFR part 75 in any year in which this program is in effect. In the NIA, the application package, or both, we will announce the maximum points assigned to each selection criteria.
1.
The Assistant Secretary for Postsecondary Education establishes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.
1.
2.
3.
4.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice of final priorities does
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final priorities, requirements, selection criterion, and definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The benefits of the FITW program are the generation of a body of evidence for what works in postsecondary education through development, evaluation, and dissemination of innovative strategies to support students who are at risk of failure in persisting in and completing their postsecondary programs of study. The priorities, requirements, definitions, and selection criterion announced in this notice will provide applicants a framework for achieving the goals and objectives of the FITW program.
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
For FY 2015, the Department will award two types of grants under this program: “Development” grants and “Validation” grants. These grants differ in terms of the level of evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.
This notice invites applications for Development grants only. Development grants will support new or substantially more effective practices for addressing widely shared challenges. Applications for Development grants must be based on Strong Theory (as defined in this notice). The Department has published a separate notice inviting applications for Validation grants elsewhere in this issue of the
These priorities are from the notice of final priorities, requirements, definitions, and selection criterion for this program (NFP), published elsewhere in this issue of the
These priorities are:
The Secretary gives priority to:
Projects designed to improve teaching and learning through:
Instruction-level tools or strategies such as adaptive learning technology, educational games, personalized learning, active- or project-based learning, faculty-centered strategies that systematically improve the quality of teaching, or multi-disciplinary efforts focused on improving instructional experiences.
A large percentage of students in postsecondary education struggle academically because they arrive to college unprepared for college-level coursework.
Despite these challenges and opportunities, innovations in how students experience learning in college remain largely small scale or limited to a small number of institutions. With some exceptions, the same degrees and other credentials are offered in the traditional ways, by counting numbers of courses taken or hours taught. Methods of teaching have stayed largely static, with the traditional lecture as the core instructional design. New approaches to teaching and learning, such as tools and strategies that go beyond the traditional lecture to support active learning, and that actively engage learners or customize learning, must be tested and expanded to more postsecondary institutions to improve accessibility and quality and reduce cost.
The Secretary gives priority to:
Projects that support the development and use of externally validated assessments of student learning and stated learning goals through one of the following:
(a) Alternative assessment tools or strategies such as micro- or competency-based assessments, assessments embedded in curriculum, or simulations, games, or other technology-based assessment approaches.
(b) Aligning assessments across sectors and institutions, such as across kindergarten through grade 12 and postsecondary education systems or across two-year and four-year
Learning assessment has shown promise as an effective instructional strategy to increase student success. While learning assessment, in the past, focused more on traditional testing, current assessment has expanded to assess not just what students know but also what they can do, and is embedded in ways that inform instruction on an ongoing basis. Further, a knowledge-based economy requires assessment of higher-order thinking skills such as analysis, synthesis, and transfer; along with “non-cognitive” capacities such as mindset, persistence, and other qualities. New forms of assessments must be developed for these purposes and tested for their benefits to students. Assessments are also needed to measure what is learned outside the classroom, such as through previous work experience, workplace or community-based experiences, and other high impact engagements.
The Secretary gives priority to:
Projects designed to develop and implement systems and practices to capture and aggregate credit or other evidence of knowledge and skills towards postsecondary degrees or credentials through one of the following:
(a) Seamless transfer of credits between postsecondary institutions; or
(b) Validation and transfer of credit for learning or learning experiences from non-institutional sources.
Students obtain knowledge and skills through a variety of experiences and from a range of institutions and providers. Many postsecondary students attend more than one institution on their way to earning a certificate or degree. Further, many student learning experiences, such as learning that occurs through work experience or from non-traditional education providers, are simply not recognized.
Alternate systems and methods of assessing, aggregating, and credentialing learning experiences are needed to help more students reach completion in accelerated timeframes. Additionally, new systems of portable, stackable postsecondary degrees and credentials along transparent career pathways must be designed and opportunities to obtain such degrees and credential must be expanded.
Given the limited resources of secondary schools, institutions of higher education, and other relevant stakeholders, the cost effectiveness of any intervention designed to improve student outcomes is of primary importance. In recent years, numerous institutions, researchers, and others have begun testing interventions that are relatively low cost but have the ability to have a high impact on student outcomes. Many of these interventions minimize cost through the use of technology, such as digital messaging or predictive analytics to target interventions. Others incorporate low cost approaches, such as non-cognitive interventions. We are particularly interested in effective low cost interventions because even institutions with limited resources would be able to scale such strategies to impact large numbers of students, and, such interventions, particularly those that use technology, are often easily replicable.
This priority is:
The Secretary gives priority to projects that use low-cost tools or strategies, such as those that use technology, that result in a high impact on student outcomes.
The selection criteria for the FY 2015 Development competition are designed to ensure that applications selected for funding have the best potential to generate substantial improvements and research in student outcomes, and include well-articulated plans for the implementation, dissemination, and evaluation of the proposed projects. Applicants should review the selection criteria and submission instructions carefully to ensure their applications address this year's criteria.
(a)
(b)
(c)
(i) The grantee must conduct an Independent Evaluation (as defined in this notice) of its project. The evaluation must estimate the impact of the FITW-supported practice (as implemented at the proposed level of scale) on a relevant outcome (as defined in 34 CFR 77.1(c)).
(ii) The grantee must make broadly available, digitally and free of charge, through formal (
(iii) The grantee and its independent evaluator must agree to cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor, including any technical assistance provided to ensure that the evaluation design meets the required evaluation standards, and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation and provide the updated evaluation plan to the Department. All of these updates must be consistent with the scope and objectives of the approved application.
(d)
(e)
The following definitions are from the NFP and from 34 CFR 77.1 and apply
20 U.S.C. 1138–1138d.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2016 or later years from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
To qualify as an eligible MSI under the FITW Program, an institution of higher education must meet one of two criteria:
The first criterion includes: Current eligibility approval as defined by the Department's FY 2015 eligibility process for Title III and/or Title V of the Higher Education Act of 1965, as amended; an open grant under one of the Department's Title III, Parts A and F and/or Title V programs; or a designation as a Historically Black College or University or a Tribally Controlled College.
The second criterion includes: Specific enrollment percentages for minority students served; and, if applicable, needy student and educational and general expenditure criteria for determining income eligibility.
More information on MSI eligibility is in the application package under the section entitled
2.
1.
To obtain a copy via the Internet, use the following address:
You also can contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.116F.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• The selection criteria to no more than 30 pages, and
• The competitive preference priority to no more than 2 pages.
Accordingly, under no circumstances may the application narrative exceed 32 pages.
Please include a separate heading for the competitive preference priority if you choose to address it.
For purposes of determining compliance with the 32-page limit, each page on which there are words will be counted as one full page. Applicants must use the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative,
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, graphs, footnotes, and endnotes.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The 32-page limit does not apply to Part I, the cover sheet, the table of contents; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or Abstract and Information page, the resumes (three-page limit per resume), the citations or full studies, appendix, or letters of support.
If you include any attachments or appendices not specifically requested and required for the application, these items will be counted as part of the narrative for the purposes of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV.7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
To do business with the Department of Education, you must—
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative
7.
Applications for grants under the First in the World Program, CFDA number 84.116F, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the First in the World Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Gary Thomas, First in the World, U.S. Department of Education, 1990 K Street NW., Room 6153, Washington, DC 20006–8544. FAX: (202) 502–7877.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA 84.116F, LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA 84.116F, 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
The Secretary considers the significance of the proposed project. In determining the significance of the proposed project, the Secretary considers the following factors:
1. The potential contribution of the proposed project to increased knowledge or understanding of education problems, issues, or effective strategies.
2. The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies.
3. The potential replicability of the proposed project or strategies, including, as appropriate, the potential for implementation in a variety of settings.
The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:
1. The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.
2. The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.
3. The extent to which there is a conceptual framework underlying the proposed research or demonstration activities and the quality of that framework.
The Secretary considers the adequacy of resources for the proposed project. In determining the adequacy of resources for the proposed project, the Secretary considers the following factors:
1. The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization.
2. The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
3. The qualifications, including relevant training and experience, of the project director or principal investigator.
4. The qualifications, including relevant training and experience, of the key project personnel.
The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the evaluation, the Secretary considers the following factors:
1. The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are specified and measurable.
2. The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's
3. The extent to which the methods of evaluation will, if well-implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations.
4. The qualifications, including relevant training and experience, of project consultants or subcontractors.
Successful applications will be those that have an evaluation design that has the potential to meet the What Works Clearinghouse Evidence Standards with or without reservations. The What Works Clearinghouse Procedures and Standards Handbook describes in detail which types of study designs can meet WWC Evidence Standards with or without reservations including both quasi-experimental design studies and randomized controlled trials (as defined in this notice). The response to this selection criterion should include a description of the total unduplicated number of students involved in the project. The term project consultants include the person or firm conducting the independent evaluation (as defined in this notice). The applicant is encouraged to select an evaluator with experience in the design and management of evaluations designed to meet What Works Clearinghouse Evidence Standards.
We encourage eligible applicants to review the following technical assistance resources on evaluation:
(1) What Works Clearinghouse Procedures and Standards Handbook:
(2) IES/NCEE Technical Methods papers:
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Prior to making awards, we will screen applications submitted in accordance with the requirements in this notice to determine which applications meet the eligibility requirements. This screening process may occur at various stages of the application review process; applicants that are determined ineligible will not be considered further or be awarded a grant. For the application review process, we will use independent peer reviewers with varied backgrounds and professions in postsecondary education including college and university educators, researchers and evaluators, strategy consultants, grant makers and managers, and others with postsecondary education expertise. All reviewers will be thoroughly screened for conflicts of interest to ensure a fair and competitive review process.
For FITW Development grant applications the Department will use a two-tier review process to review and score eligible applications. Content reviewers will review and score eligible applications on the three selection criteria: A. Significance; B. Quality of the Project Design; and C. Adequacy of Resources. These reviewers will also review and score the applications which address the competitive preference priority. Eligible applications that score highly on these three selection criteria will have the remaining criterion, D. Quality of the Project Evaluation, reviewed and scored by a different panel of peer reviewers with evaluation expertise.
Finally, if there are two or more applications with the same final score and there are insufficient funds to fully support these applications, the Department will consider an equitable distribution of grants among geographic locations.
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
To ensure that the Federal investment of these funds has as broad an impact as possible and to encourage innovation in the development of new learning materials, FITW grantees will be required to license to the public all intellectual property (except for computer software source code, discussed below) created with the support of grant funds, including both new content created with grant funds and modifications made to pre-existing, grantee-owned content using grant funds. That license must be worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and grant the public permission to access, reproduce, publicly perform, publicly display, adapt, distribute, and otherwise use the intellectual property referenced above (except for computer software source code, discussed below) for any purposes, conditioned only on the requirement that attribution be given to authors as designated. Further, the Department requires that all computer software source code developed or created with FITW funds will be released under an intellectual property license that allows others to freely use and build upon them.
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
(a) The extent to which funded projects are replicated (
(b) The extent to which projects are institutionalized and continued after funding.
(c) The extent to which the metrics used to assess and evaluate project results measure performance under the absolute priority the project is designed to address.
(d) The percentage of projects supported by FITW grants that produce evidence of their effectiveness (
(e) The percentage of projects supported by FITW grants that provide high-quality implementation data and performance feedback that allow for periodic assessment of progress toward achieving intended outcomes.
(f) The cost per student served by FITW grants.
(g) The cost per successful student outcome.
If funded, you will be asked to collect and report data from your project on steps taken toward achieving the outcomes evaluated by these performance measures. Consequently, applicants are advised to include these outcomes in conceptualizing the design, implementation, and evaluation of their proposed projects.
Gary Thomas, U.S. Department of Education, 1990 K Street NW., Room 6153, Washington, DC 20006–8544. Telephone: 202–502–7677. You may send emails to
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2015.
For FY 2015, the Department will award two types of grants under FITW: “Development” grants and “Validation” grants. These grants differ in terms of the level of evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.
This notice invites applications for Validation grants only. Validation grants provide funding to support the expansion and replication of projects supported by moderate evidence of effectiveness (as defined in this notice) to a scaled multi-site sample (as defined in this notice), which would include multiple institutions of higher education, including multiple institutions within a State system.
All Validation grantees must evaluate the effectiveness of the project at each partner entity. The evaluation design will be assessed on the extent to which it could meet What Works Clearinghouse Evidence Standards (as defined in this notice) without reservations.
The Department has published a separate notice inviting applications for Development grants elsewhere in this issue of the
These priorities are:
The Secretary gives priority to:
Projects designed to improve student success in developmental education or accelerate student progress into credit-bearing postsecondary courses.
Many students arrive at college unprepared for college-level coursework. They often lack the critical thinking, analytical, and communication skills needed for success in college and preparation for the workforce.
This priority invites applications for evidence-based interventions and solutions that engage students more quickly in credit-bearing courses, such as streamlined approaches through GED equivalency or high school credential equivalency for adult learners to allow them to begin taking formal postsecondary coursework.
The Secretary gives priority to projects designed to improve teaching and learning.
Methods of teaching have stayed largely static, with the traditional lecture as the core instructional design. New approaches to teaching and learning that incorporate curriculum and course re-design, such as by using tools and strategies that go beyond the traditional lecture to support active learning or customize learning, must be tested and expanded to more postsecondary institutions to improve accessibility and quality and reduce cost.
The Secretary gives priority to projects designed to improve the supports or services provided to students prior to or during the students' enrollment in postsecondary education.
Almost all institutions of higher education offer a diverse array of student support services to assist with financial aid, academic barriers and other issues related to persistence and completion. The range of services and support is extensive and includes interventions both inside and outside the classroom and campus. Many of these services are also provided by outside organizations, including non-profits.
However, few student support services strategies are widely implemented on the basis of evidence of effectiveness. There is a great need to expand validated cost effective approaches, so that a greater number of students can be served.
The Secretary gives priority to projects that are designed to improve students' mastery of non-cognitive skills and behaviors (such as academic behaviors, academic mindset, perseverance, self-regulation, social and emotional skills, and approaches toward learning strategies) and enhance student motivation and engagement in learning.
The development of non-cognitive factors is critical during the postsecondary years as students face new academic challenges, social comparisons, and stereotypes regarding their potential for success. How students negotiate these changes has major implications for their academic futures.
The selection criteria for the FY 2015 Validation competition are designed to ensure that applications selected for funding have the best potential to generate substantial improvements and research in student outcomes, and include well-articulated plans for the implementation, dissemination, and evaluation of the proposed projects. Applicants should review the selection criteria and submission instructions carefully to ensure their applications address this year's criteria.
Applicants should note that we screen for eligibility at multiple points before, during, and after the review process. Applicants that are determined to be ineligible at any point in the review process will not receive a grant award regardless of peer reviewer scores or comments. If we determine that a Validation grant application is not supported by moderate evidence of effectiveness, either because the study submitted does not meet the standard or is not closely relevant to the proposed project, the application will not be considered for funding.
(a)
(i) Persistence.
(ii) Academic progress.
(iii) Time to degree.
(iv) Completion.
(b)
(i) An application for a Validation grant must be supported by moderate evidence of effectiveness (as defined in 34 CFR 77.1(c)).
(ii) An application for a Validation grant must be supported by the following level of sample size: Scaled multi-site sample, such as across a system of institutions, across institutions in a State, a region, or nationally, or across institutions in a labor market sector.
(iii) An applicant's project must propose to implement the core aspects of the process, product, strategy, or practice from the supporting study as closely as possible. Where modifications to a cited process, product, strategy, or practice will be made to account for student or institutional characteristics, resource limitations, or other special factors or to address deficiencies identified by the cited study, the applicant must provide a justification or basis for the modifications. Modifications may not be proposed to the core aspects of any cited process, product, strategy, or practice.
(c)
(i) The grantee must conduct an independent evaluation (as defined in this notice) of its project. The evaluation must estimate the impact of the FITW-supported practice (as implemented at the proposed level of scale) on a relevant outcome (as defined in 34 CFR 77.1(c)).
(ii) The grantee must make broadly available, digitally and free of charge, through formal (
(iii) The grantee and its independent evaluator must agree to cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor, including any technical assistance provided to ensure that the evaluation design meets the required evaluation standards, and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation and provide the updated evaluation plan to the Department. All of these updates must be consistent with the scope and objectives of the approved application.
(d)
(e)
The following definitions are from the NFP and from 34 CFR 77.1 and apply to the priorities, requirements, and selection criteria in this notice:
(a) There is at least one study of the effectiveness of the process, product, strategy, or practice being proposed that meets the What Works Clearinghouse Evidence Standards without reservations, found a statistically significant favorable impact on a relevant outcome (as defined in this notice) (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 includes a sample that overlaps with the populations or settings proposed to receive the process, product, strategy, or practice.
(b) There is at least one study of the effectiveness of the process, product, strategy, or practice being proposed that meets the What Works Clearinghouse Evidence Standards with reservations, found a statistically significant favorable impact on a relevant outcome (as defined in this notice) (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), includes a sample that overlaps with the populations or settings proposed to receive the process, product, strategy, or practice, and includes a large sample (as defined in this notice) and a multi-site sample (as defined in this notice).
20 U.S.C. 1138–1138d.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2016 or later years from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
To qualify as an eligible MSI under the FITW program, an institution of higher education must meet one of two criteria. The first criterion includes: Current eligibility approval as defined by the Department's FY 2015 eligibility process for Title III and/or Title V of the Higher Education Act of 1965, as amended; an open grant under one of the Department's Title III, Parts A and F and/or Title V programs; or a designation as a Historically Black College of University or a Tribally Controlled College. The second criterion includes: Specific enrollment percentages for minority students served; and, if applicable, needy student and educational and general expenditure criteria for determining income eligibility.
More information on MSI eligibility is in the application package under the section entitled
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.116X.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit for the application does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract and information page, the resumes (three-page limit per resume), the bibliography, the appendices, or the letters of support.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
Applications for grants under the FITW program, CFDA number 84.116X (Validation grants), must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the FITW program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Frank Frankfort, U.S. Department of Education, 1990 K Street NW., Room 6166, Washington, DC 20006.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.116X), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.116X), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202–4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
A.
The Secretary considers the significance of the proposed project. In determining the significance of the project, the Secretary considers the following factors:
1. The potential contribution of the proposed project to increased knowledge or understanding of educational problems, issues, or effective strategies.
2. The extent to which the proposed project is likely to yield findings that may be utilized by other appropriate agencies and organizations.
3. The potential replicability of the proposed project or strategies, including, as appropriate, the potential for implementation in a variety of settings.
B.
The Secretary considers the quality of the design of the proposed project. In determining the quality of the proposed project design, the Secretary considers the following factors:
1. The extent to which the design of the proposed project includes a thorough, high-quality review of the
2. The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance.
3. The extent to which the design of the proposed project reflects up-to-date knowledge from research and effective practice.
C.
The Secretary considers the adequacy of resources for the proposed project. In determining the quality of the adequacy of resources for the proposed project, the Secretary considers the following factors:
1. The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization.
2. The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project.
3. The extent to which the costs are reasonable in relation to the number of persons to be served and to the anticipated results and benefits.
4. The qualifications, including relevant training and experience, of the project director or principal investigator.
D.
The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
1. The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
2. The extent to which the methods of evaluation will, if well-implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations.
3. The qualifications, including relevant training and experience, of project consultants or subcontractors.
Successful applications will be those that have an evaluation design that has the potential to meet the What Works Clearinghouse Evidence Standards without reservations. The response to this selection criterion should include a description and number of students who will receive the intervention at each partner institution as well as a description and number of students to whom they will be compared at each partner institution. Finally, applicants should also address whether the person or firm conducting the independent evaluation (as defined in this notice) has experience in the design and management of evaluations designed to meet What Works Clearinghouse Evidence Standards.
We encourage eligible applicants to review the following technical assistance resources on evaluation:
(1) What Works Clearinghouse Procedures and Standards Handbook:
(2) IES/NCEE Technical Methods papers:
2.
Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether the application meets the eligibility requirements. This screening process may occur at various stages of the process. Applicants that are determined to be ineligible at any stage of the review process will not be considered further or receive a grant.
We will use independent peer reviewers with varied backgrounds and professions, such as college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, and others with education expertise for the peer review process. All reviewers will be thoroughly screened for conflicts of interest to ensure a fair and competitive review process. Peer reviewers will read the assigned applications, prepare a written evaluation, and score the applications using the selection criteria provided in this notice.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
For FITW Validation grant applications the Department will create review panels comprised of content and evaluation experts. Content reviewers will review all eligible proposals but score only the first three selection criteria: A. Significance; B. Quality of the Project Design; and C. Adequacy of Resources. Evaluation experts will review all eligible proposals but score only the fourth criterion, D. Quality of the Project Evaluation.
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
To ensure that the Federal investment of these funds has as broad an impact as possible and to encourage innovation in the development and dissemination of learning materials, FITW grantees will be required to license to the public all intellectual property (except for computer software source code, as discussed below) created with the support of grant funds, including both new content created with grant funds and modifications made to pre-existing, grantee-owned content using grant funds. That license must be worldwide, non-exclusive, royalty-free, perpetual, irrevocable, and grant the public permission to access, reproduce, publicly perform, publicly display, adapt, distribute, and otherwise use the intellectual property referenced above
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. You must also submit a final evaluation report. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. You must also submit an annual evaluation report. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
(1) The extent to which funded projects are replicated (
(2) The extent to which projects are institutionalized and continued after funding.
(3) The extent to which the metrics used to assess and evaluate project results measure performance under the absolute priority the project is designed to address.
(4) The percentage of projects supported by FITW grants that produce evidence of their effectiveness (that meets What Works Clearinghouse Evidence Standards without reservations) at improving student outcomes and college affordability, especially for low-income students.
(5) The percentage of projects supported by FITW grants that provide high-quality implementation data and performance feedback that allow for periodic assessment of progress toward achieving intended outcomes.
(6) The cost per student served by FITW grants.
(7) The cost per successful student outcome.
If funded, you will be asked to collect and report data from your project on steps taken toward achieving the outcomes evaluated by these performance measures.
Consequently, applicants are advised to include these outcomes in conceptualizing the design, implementation, and evaluation of their proposed projects.
Frank Frankfort, U.S. Department of Education, 1990 K Street NW., Room 6166, Washington, DC 20006–8544. Telephone: (202) 502–7513. FAX: (202) 502–7877 or by email. You may send emails to
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1–800–877–8339.
You may also access documents of the Department published in the