Commodity Credit Corporation
Forest Service
National Agricultural Statistics Service
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Defense Acquisition Regulations System
Engineers Corps
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Geological Survey
National Park Service
Reclamation Bureau
National Endowment for the Humanities
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Fiscal Service
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
U.S. Office of Personnel Management.
Final rule.
The United States Office of Personnel Management (OPM) is issuing a final rule to amend the Federal Long Term Care Insurance Program (FLTCIP) regulation to expand eligibility to apply for coverage under the Program. This rule expands the definition of “qualified relative” to include opposite-sex domestic partners of Federal and U.S. Postal Service employees, annuitants, members of the uniformed services, and retired members of the uniformed services. In addition, this rule provides that adult children of domestic partners will be considered one of the types of individuals comprising the statutory term “qualified relative” who may apply for FLTCIP coverage.
Effective November 30, 2015.
Ronald Brown, Policy Analyst, (202) 606–0004, or by email to
On November 13, 2014, OPM published proposed regulations in the
Comments were requested to be received on or before January 12, 2015. After reviewing the comments received OPM is issuing the final regulation as proposed.
We received three comments on the proposed rule. All commenters expressed support for the proposed rule that extends important coverage to domestic partners and to children of domestic partners under the FLTCIP. One commenter approved the wording of the proposed rule with no suggested changes and this comment is not addressed. Below, please find our response to the remaining two comments we received.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only adds additional groups to the list of groups eligible to apply for coverage under the FLTCIP. The FLTCIP is a voluntary, self-pay, benefits program with no Government contribution.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
Administrative practice and procedure, Employee benefit plans, Government contracts, Government employees, health insurance, military personnel, organization and functions, Retirement.
Accordingly, OPM is amending 5 CFR part 875 as follows:
5 U.S.C. 9008.
(1) A committed relationship between two adults, of the opposite sex or same sex, in which the partners—
(i) Are each other's sole domestic partner and intend to remain so indefinitely;
(ii) Maintain a common residence, and intend to continue to do so (or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle);
(iii) Are at least 18 years of age and mentally competent to consent to a contract;
(iv) Share responsibility for a significant measure of each other's financial obligations;
(v) Are not married or joined in a civil union to anyone else;
(vi) Are not a domestic partner of anyone else;
(vii) Are not related in a way that would prohibit legal marriage in the U.S. jurisdiction in which the domestic partnership was formed;
(viii) Provide documentation demonstrating fulfillment of the requirements of paragraphs (1)(i) through (vii) of this definition as prescribed by OPM; and
(ix) Certify that they understand that willful falsification of the documentation described in paragraph (1)(viii) of this definition may lead to disciplinary action and the recovery of the cost of benefits received related to such falsification and may constitute a criminal violation under 18 U.S.C. 1001.
(2) You or your domestic partner must notify the employing office if at any time between the time of application and the time coverage is scheduled to go into effect, any of the conditions listed in paragraphs (1)(i) through (vii) of this definition are no longer met, in which case a domestic partnership is deemed terminated. Such notification must be made as soon as possible, but in no event later than thirty calendar days after such conditions are no longer met.
You may not apply as a qualified relative if the workforce member on whom you are basing your qualified relative status died prior to the time you apply for coverage, unless you are receiving a survivor annuity as the spouse or an insurable interest annuity as the domestic partner of a deceased workforce member. In this case, your adult children and your current spouse or domestic partner are also considered to be qualified relatives.
(a) You may apply for coverage as a qualified relative if you are a domestic partner, as described in § 875.101 of this chapter. As prescribed by OPM, you will be required to provide documentation to demonstrate that you meet these requirements, and you must submit to full underwriting requirements. However, as explained in § 875.210 of this chapter, if you lose your status as a domestic partner, and therefore a qualified relative, before your coverage goes into effect, you are no longer eligible for FLTCIP coverage.
(a)
(2) If you are an active workforce member and you have entered into a domestic partnership, your domestic partner is eligible to submit an application for coverage under this section at any time from the commencing date of your domestic partnership and will be subject to full underwriting requirements. You are not eligible for abbreviated underwriting because of your domestic partnership. You, your domestic partner, or both you and your domestic partner may apply for coverage at any time, but full underwriting will be required for both of you.
(b)
(c)
Except as provided in paragraph (e) of this section, your coverage will terminate on the earliest of the following dates:
(e) Termination of a domestic partnership does not terminate insurance coverage as long as the Carrier continues to receive the required premium when due.
Merit Systems Protection Board.
Interim final rule.
The Merit Systems Protection Board (MSPB or the Board) hereby amends its rules of practice and procedure to clarify that parties have a right to discovery under the MSPB's existing discovery procedures in compliance proceedings.
This interim final rule is effective on October 30, 2015. Submit written comments concerning this interim final rule on or before December 29, 2015.
Submit your comments concerning this interim final rule by one of the following methods and in accordance with the relevant instructions:
William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW., Washington, DC, 20419; phone: (202) 653–7200; fax: (202) 653–7130; or email:
This interim final rule is necessary because in
A new provision, section 1201.183(a)(9), is inserted to make clear that discovery may be undertaken in enforcement matters. This new provision makes clear that the Board's regular discovery procedures apply in enforcement matters and sets a deadline by which initial discovery requests must be filed. As in other Board cases, this deadline may be changed by the judge.
Ordinarily, the Administrative Procedure Act (APA) requires an agency to provide notice of proposed rulemaking and a period of public comment before the promulgation of a new regulation. 5 U.S.C. 553(b) and (c). However, section 553(b) of the APA specifically provides that the notice and comment requirements do not apply:
(A) To interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The APA also requires the publication of any substantive rule at least thirty days before its effective date, 5 U.S.C. 553(d), except where the rule is interpretive, where the rule grants an exception or relieves a restriction, or “as
The Board finds that use of an immediately effective interim final rule instead of notice and comment rulemaking is appropriate here because the amendments contained herein merely reflect the decision of the Federal Circuit in
Administrative practice and procedure.
Accordingly, for the reasons set forth in the preamble, the Board amends 5 CFR part 1201 as follows:
5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.
(a) * * *
(9) Discovery may be undertaken in accordance with the Board's regular discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement as required under paragraph (a)(1) of this section.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Honda Aircraft Company HA–420 airplane. This airplane will have a novel or unusual design feature(s) associated with the use of a cruise speed control system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are effective October 30, 2015 and are applicable on October 26, 2015.
Jeff Pretz, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329–3239; facsimile (816) 329–4090.
On October 11, 2006, Honda Aircraft Company applied for a type certificate for their new Model HA–420. On October 10, 2013, Honda Aircraft Company requested an extension with an effective application date of October 1, 2013. This extension changed the type certification basis to amendment 23–62.
The HA–420 is a four to five passenger (depending on configuration), two crew, lightweight business jet with a 43,000-foot service ceiling and a maximum takeoff weight of 9963 pounds. The airplane is powered by two GE-Honda Aero Engines (GHAE) HF–120 turbofan engines.
The HA–420 airplane will use a cruise speed control system (CSC), which is part of the automatic flight control system (AFCS), to reduce pilot workload during cruise flight only. The intended function is automatic airplane speed control during altitude hold AFCS mode by adjustment of the engine thrust within a narrow authority band utilizing the existing engine synchronization control. The CSC system does not back drive the throttles. The command authority is limited to values used for engine synchronization and can only be engaged when the throttle is positioned in a pre-determined range typically used for cruise power. This significantly reduces the CSC authority such that failure modes of the system should be minor. The proposed CSC system functions in a manner similar to an auto-throttle system, but has significantly less authority when compared to a traditional auto-throttle system.
Under the provisions of 14 CFR 21.17, Honda Aircraft Company must show that the HA–420 meets the applicable provisions of part 23, as amended by amendments 23–1 through 23–62, thereto.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the HA–420 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
The HA–420 will incorporate the following novel or unusual design features: Cruise Speed Control system
As defined in the summary section, this airplane makes use of a CSC system, which is a novel design for this type of airplane. The applicable airworthiness
Notice of proposed special conditions No. 23–15–05–SC for the Honda Aircraft Company model HA–420 airplanes was published in the
As discussed above, these special conditions are applicable to the HA–420. Should Honda Aircraft Company apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
This action affects only certain novel or unusual design features on one model of HA–420 airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Honda Aircraft Company HA–420 airplanes.
1. Cruise Speed Control.
In addition to the requirements of §§ 23.143, Controllability and Maneuverability—General; 23.1309, Equipment, systems, and installations; and 23.1329, Automatic pilot system; auto throttle systems of limited authority that do not back drive the throttles and for which all failure modes are shown to be no greater than minor, the following requirements apply:
(a) Quick disengagement controls for the autothrust functions must be provided for each pilot. Quick disengagement controls must be readily accessible to each pilot while operating the thrust control levers.
(b) The effects of a failure of the system to disengage the autothrust functions when manually commanded by the pilot must be assessed in accordance with the requirements of § 23.1309.
(c) Engagement or switching of the flight guidance system, a mode, or a sensor may not cause the autothrust system to effect a transient response that alters the airplane's flight path any greater than a minor transient, as defined in paragraph (l)(1) of this section.
(d) Under normal conditions, the disengagement of any automatic control function of a flight guidance system may not cause a transient response of the airplane's flight path any greater than a minor transient.
(e) Under rare normal and non-normal conditions, disengagement of any automatic control function of a flight guidance system may not result in a transient any greater than a significant transient, as defined in paragraph (l)(2) of this section.
(f) The function and direction of motion of each command reference control (such as CSC) must be plainly indicated on, or adjacent to, each control, if necessary to prevent inappropriate use or confusion.
(g) Under any condition of flight appropriate to its use, the flight guidance system may not produce hazardous loads on the airplane, nor create hazardous deviations in the flight path. This applies to both fault-free operation and in the event of a malfunction, and assumes that the pilot begins corrective action within a reasonable period of time.
(h) When the flight guidance system is in use, a means must be provided to avoid excursions beyond an acceptable margin from the speed range of the normal flight envelope. If the airplane experiences an excursion outside this range, a means must be provided to prevent the flight guidance system from providing guidance or control to an unsafe speed.
(i) The flight guidance system functions, controls, indications, and alerts must be designed to minimize flightcrew errors and confusion concerning the behavior and operation of the flight guidance system. Means must be provided to indicate the current mode of operation, including any armed modes, transitions, and reversions. Selector switch position is not an acceptable means of indication. The controls and indications must be grouped and presented in a logical and consistent manner. The indications must be visible to each pilot under all expected lighting conditions.
(j) Following disengagement of the autothrust function, a caution (visual and, unless there are no misleading or hazardous consequences associated with its absence, auditory) must be provided to each pilot.
(k) During autothrust operation, it must be possible for the flightcrew to move the thrust levers without requiring excessive force. The autothrust may not create a potential hazard when the flightcrew applies an override force to the thrust levers.
(l) For purposes of this section, a transient is a disturbance in the control or flight path of the airplane that is not consistent with response to flightcrew inputs or environmental conditions.
(1) A minor transient would not significantly reduce safety margins and would involve flightcrew actions that are well within their capabilities. A minor transient may involve a slight increase in flightcrew workload or some physical discomfort to passengers or cabin crew.
(2) A significant transient may lead to a significant reduction in safety margins, an increase in flightcrew workload, discomfort to the flightcrew, or physical distress to the passengers or cabin crew, possibly including non-fatal injuries. Significant transients do not require, in order to remain within or recover to the normal flight envelope, any of the following:
(i) Exceptional piloting skill, alertness, or strength.
(ii) Forces applied by the pilot which are greater than those specified in § 23.143(c).
(iii) Accelerations or attitudes in the airplane that might result in further hazard to secured or non-secured occupants.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Fiberglas-Technik Rudolf Lindner GmbH & Co. KG Models G103 TWIN ASTIR, G103 TWIN II, and G103A TWIN II ACRO gliders. This AD results from mandatory continuing airworthiness information (MCAI) issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a broken bell-crank installed in the air brake control system. We are issuing this AD to require actions to address the unsafe condition on these products.
This AD is effective December 4, 2015.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of December 4, 2015.
You may examine the AD docket on the Internet at
For service information identified in this AD, contact Fiberglas-Technik Rudolf Lindner GmbH & Co.KG, Steige 3, D–88487 Walpertshofen, Germany; phone: ++49 (0) 7353/22 43; fax: ++49 (0) 7353/30 96; email:
Jim Rutherford, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4165; fax: (816) 329–4090; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to all Fiberglas-Technik Rudolf Lindner GmbH & Co. KG Models G103 TWIN ASTIR, G103 TWIN II, and G103A TWIN II ACRO gliders. The NPRM was published in the
A report was received concerning a broken bell-crank, installed in the air brake control circuit approximately 1.4 m outside the wing root rib of a GROB G 103 Twin II sailplane. Preliminary investigation results revealed additional cases of cracks on the same part, installed in the air brake control systems of the early Twin II type design.
The same bell-cranks are also installed at the same location in the control systems of other models belonging to the same type design (see list of affected models under Applicability).
This condition, if not detected and corrected, could lead to failure of the air brake system, possibly resulting in reduced control of the sailplane.
To address this potential unsafe condition, Fiberglas-Technik issued Technische Mitteilung (TM)/Service Bulletin (SB) TM–G08/SB–G08 (one document) and Anweisung (A)/Instructions (I) A/I–G08 (one document) to provide instructions for a check of the air brake locking forces, the inspection of the bell-crank and, if cracks are found, replacement of the bell-crank.
Additionally, TM–G07/SB–G07 (one document) and A/I–G07 (one document) provide instructions for the installation of inspection openings in the wing of GROB G 103 TWIN II and G 103 A TWIN II ACRO sailplanes to facilitate the inspection of the bell-crank. (For the TWIN ASTIR and TWIN ASTIR TRAINER sailplanes, such an opening is required by LBA AD 92–190/2 (GROB SB 315–45/2.) This installation is optional for sailplanes not exceeding the original intended life limit.
For the reason described above, this AD requires a check of the air brake locking forces, an inspection for cracks in the air brake control unit and, if cracks are found, replacement of the affected flight control system parts. This AD is a temporary measure and further AD action may follow.
The MCAI can be found in the AD docket on the Internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.
William Tisdale requested that the AD give credit for inspections that were done following Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and Fiberglas-Technik Rudolf Lindner Anweisung (English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015, within the year before the AD being issued as meeting the initial inspection requirement for both the tension and crack inspection.
We infer that the commenter made this request in order to prevent duplication of work already done.
We agree with the commenter. In paragraph (f) of this AD, the first sentence reads, “Unless already done, do the following actions:.” This sentence gives compliance credit to owners/operators of the affected gliders for actions required by this AD that have already been done before the effective date of this AD, if done following the service information required by this AD.
Because the requested change is already part of this AD, we have not changed the final rule AD action based on this comment.
William Tisdale requested the use of a lighted borescope from either the wing rib root or access through the spoiler box push rod opening to inspect the bell-crank.
We infer that the commenter wants us to incorporate into the AD an allowance to use a lighted borescope to do the inspection of the bell-crank installed in the air brake control system.
We agree with the commenter about using a lighted borescope for the inspection from the wing rib root as it is already allowed in Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and Fiberglas-Technik Rudolf Lindner Anweisung (English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015. In the service information it states, “This inspection is done using an endoscope or small camera working
We disagree with the commenter with using a lighted borescope to do the inspection by accessing the area through the spoiler box push rod opening since this procedure is not specified in the required service information. The commenter may request an alternative method of compliance (AMOC) for this process. The request, including all substantiating data, may be submitted following 14 CFR 39.19 as specified in paragraph (g)(1) of this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (80 FR 47871, August 10, 2015) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 47871, August 10, 2015).
We reviewed Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and Fiberglas-Technik Rudolf Lindner Anweisung/(English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015. The service information describes procedures for inspecting the air brake locking forces; inspecting the bell-crank; and, if cracks are found during the inspections, replacing the bell-crank. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We consider this AD interim action. The design approval holder is working toward a terminating action for the repetitive inspections. We may take further AD action in the future.
We estimate that this AD will affect 106 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of this AD on U.S. operators to be $18,020, or $170 per product.
In addition, we estimate that any necessary follow-on actions will be as follows:
• Replacement of bell-crank will take about 5 work-hours per product. Required parts will cost about $566 for a total of $991 per product.
• Installation of optional inspection openings will take about 15 work-hours per product. Required parts will cost about $1,004 for a total of $2,279 per product.
We have no way of determining the number of products that may need these actions.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120–0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES–200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective December 4, 2015.
None.
This AD applies to Fiberglas-Technik Rudolf Lindner GmbH & Co. KG Models G103 TWIN ASTIR, G103 TWIN II, and G103A TWIN II ACRO gliders, all manufacturer serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 27: Flight Controls.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as a broken bell-crank installed in the air brake control system. We are issuing this AD to detect and correct a broken bell-crank which could lead to failure of the air brake system, possibly resulting in reduced control.
Unless already done, do the following actions:
(1) Within 30 days after December 4, 2015 (the effective date of this AD) and repetitively thereafter at intervals not to exceed 12 months, inspect the locking forces of the air brake control unit, and, if any discrepancy is found, before further flight, correct the locking forces. Do the inspection and correction of any discrepancy following the instructions of Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and Fiberglas-Technik Rudolf Lindner Anweisung (English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015.
This service information contains German to English translation. The European Aviation Safety Agency (EASA) used the English translation in referencing the document. For enforceability purposes, we will refer to the Fiberglas-Technik Rudolf Lindner service information as it appears on the document.
(2) Within 60 days after December 4, 2015 (the effective date of this AD), inspect the bell-crank installed in the air brake control system, and, if any cracks are found, before further flight, replace the bell-crank with a serviceable part. Do the inspection and replacement following the instructions of Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and Fiberglas-Technik Rudolf Lindner Anweisung (English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015.
In the lower wing surface inspection, openings near the bell-crank may be installed to simplify the inspection and make a possible replacement of the bell-crank possible. This optional installation is described in GROB Luft Und Raumfahrt Service Bulletin 315–45/2, dated December 21, 1995; and Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G07), Edition April 24, 2015.
(3) Within 30 days after replacing a bell-crank as required by paragraph (f)(2) of this AD or within the next 30 days after December 4, 2015 (the effective date of this AD), whichever occurs later, report the inspection results of the removed bell-crank to Fiberglas-Technik Rudolf Lindner GmbH & Co. KG. You may find contact information for Fiberglas-Technik Rudolf Lindner GmbH & Co. KG in paragraph (h) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI European Aviation Safety Agency (EASA) AD No.: 2015–0116, dated June 24, 2015; GROB Luft Und Raumfahrt Service Bulletin 315–45/2, dated December 21, 1995; and Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G07), Edition April 24, 2015, for related information. You may examine the MCAI on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Fiberglas-Technik Rudolf Lindner Service Bulletin (SB–G08), Edition April 24, 2015; and
(ii) Fiberglas-Technik Rudolf Lindner Anweisung (English translation: Instructions), (A/I–G08), Ausgabe (English translation: Edition) April 24, 2015.
(3) For Fiberglas-Technik Rudolf Lindner GmbH & Co. KG service information identified in this AD, contact Fiberglas-Technik Rudolf Lindner GmbH & Co. KG, Steige 3, D–88487 Walpertshofen, Germany; phone: ++49 (0) 7353/22 43; fax: ++49 (0) 7353/30 96; email:
(4) You may view this service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329–4148. In addition, you can access this service information on the Internet at
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Internal Revenue Service (IRS), Treasury.
Temporary regulations.
This document contains temporary regulations relating to the imposition of certain user fees on tax return preparers. The temporary regulations reduce the user fee to apply for or renew a preparer tax identification number (PTIN) and affect individuals who apply for or renew a PTIN. The Independent Offices Appropriations Act of 1952 authorizes the charging of user fees. The text of the temporary regulations also serves as the text of the proposed regulations (REG–121496–15) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the
Concerning the temporary regulations, Hollie M. Marx at (202) 317–6844; concerning cost methodology, Eva J. Williams at (202) 803–9728.
The Independent Offices Appropriations Act of 1952 (IOAA), which is codified at 31 U.S.C. 9701, authorizes agencies to prescribe regulations that establish user fees for services provided by the agency. The charges must be fair and must be based on the costs to the government, the value of the service to the recipient, the public policy or interest served, and other relevant facts. The IOAA provides that regulations implementing user fees are subject to policies prescribed by the President; these policies are set forth in the Office of Management and Budget Circular A–25, 58 FR 38142 (July 15, 1993) (OMB Circular A–25).
Under OMB Circular A–25, federal agencies that provide services that confer benefits on identifiable recipients are to establish user fees that recover the full cost of providing the special benefit. An agency that seeks to impose a user fee for government-provided services must calculate the full cost of providing those services. In general, a user fee should be set at an amount that allows the agency to recover the direct and indirect costs of providing the service, unless the Office of Management and Budget grants an exception. OMB Circular A–25 provides that agencies are to review user fees biennially and update them as necessary.
Section 6109(a)(4) of the Internal Revenue Code authorizes the Secretary to prescribe regulations for the inclusion of a tax return preparer's identifying number on a return, statement, or other document required to be filed with the IRS. On September 30, 2010, the Treasury Department and IRS published final regulations under section 6109 (REG–134235–08) in the
In accordance with section 1.6109–2(d) of the PTIN regulations, the IRS has set forth application and renewal procedures in Form W–12,
Requiring the use of PTINs improves tax administration and tax compliance and benefits tax return preparers by allowing them to provide an identifying number on the return that is not an SSN. Requiring the use of PTINs enables the IRS to better collect and track data on tax return preparers, including the number of persons who prepare returns, the qualifications of those who prepare returns, and the number of returns each person prepares. PTIN use allows the IRS to more easily identify and communicate with tax return preparers who make errors on returns, which benefits tax return preparers by improving compliance and therefore reducing the number of client returns that are examined. The PTIN also enables the IRS to more easily locate and review returns prepared by a tax return preparer when instances of misconduct or potential misconduct are detected, which aids tax administration and compliance. These aids to tax administration and compliance in turn benefit taxpayers and tax return preparers by working to reduce preparer error and misconduct.
Section 1.6109–2(d) states that only individuals authorized to practice before the IRS under 31 U.S.C. 330 are eligible to obtain a PTIN. Under section 1.6109–2(h), the IRS may prescribe in forms, instructions, or other appropriate guidance exceptions to the requirements of the PTIN regulations, including the requirement that an individual must be authorized to practice before the IRS to be eligible to receive a PTIN. On December 30, 2010, the IRS released Notice 2011–6 (2011–3 IRB 315 (Jan. 17, 2011)), which stated that, until December 31, 2013, a provisional PTIN could be renewed upon proper application and payment of the applicable user fee, even if the individual holding the provisional PTIN was not authorized to practice before the IRS.
On June 3, 2011, the Treasury Department and the IRS published in the
Final regulations (REG–139343–08) published in the
The IRS and Treasury Department determined that a $50 user fee to apply for or renew a PTIN would recover the full direct and indirect costs that the government incurs to administer the PTIN application and renewal process. The initial determination of a $50 annual fee took into account certain costs that the IRS ascertained it would incur to provide the special benefit associated with the provision of PTINs. As explained in the PTIN user fee regulations, the initial projected costs included the development and maintenance of the IRS information technology system that would interface with a third-party vendor, the development and maintenance of internal applications that would have the capacity to process and administer the anticipated increase in PTIN applications, customer service support activities, which included Web site development and maintenance and call center staffing to respond to questions regarding PTIN usage and renewal. The $50 user fee was also determined to recover costs for personnel, administrative, and management support needed to evaluate and address tax compliance issues of individuals applying for and renewing a PTIN, to investigate and address conduct and suitability issues, and otherwise support and enforce the programs that required an individual to apply for and renew a PTIN.
The vendor's fee, currently set at $14.25 for new applications and $13 for renewal applications, is paid directly to the vendor and covers the costs incurred by the vendor to process applications and renewals. The agency user fee and the vendor fee pay for different aspects of the PTIN program, each of which is essential to the program.
Pursuant to the guidelines in OMB Circular A–25, the IRS has re-calculated its cost of providing services under the PTIN application and renewal process. The IRS has determined that the full cost of administering the PTIN program going forward has been reduced from $50 to $33 per application or renewal. Individuals who prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation are required to have a PTIN. The ability to prepare tax returns and claims for refund for compensation is a special benefit, for which the IRS may charge a user fee to recover the full costs of providing the special benefit.
The amount of the user fee is $33 for both initial PTIN applications and renewals because the activities the IRS is required to perform to issue a new PTIN or renew an existing PTIN are the same. Pursuant to the authority granted in section 6109(c), the IRS has determined that it requires certain information to assign (or, in the case of a renewal, re-assign) a PTIN to an individual. The required information is set forth in the Form W–12 and Form W–12 Instructions.
The PTIN user fee is based on direct costs of the PTIN program, which include staffing and contract-related costs for activities, processes, and procedures related to the electronic and paper registration and renewal submissions; tax compliance and background checks; professional designation checks; foreign preparer processing; compliance and IRS complaint activities; information technology and contract-related expenses; and communications. The PTIN user fee also takes into account various indirect program costs, including management and support costs.
The reduction in the fee amount is attributable to several factors, which include the reduced number of PTIN holders (approximately 700,000) from the number originally projected (1.2 million) in 2010, which reduced associated costs; the absorption of certain development costs in the early years of the program; and the fact that certain activities that would have been required to regulate registered tax return preparers will not be performed. In particular, the determination of the user fee no longer includes expenses for personnel who perform functions primarily related to continuing education and testing for registered tax return preparers. Additionally, expenses related to personnel who perform continuing education and testing for enrolled agents and enrolled retirement plan agents were also removed from the user fee.
Individuals who apply for or renew a PTIN will continue to pay a fee directly to a third-party vendor, which is separate from the user fee described in this Treasury decision. The vendor fee is increasing from $14.25 for original applications and $13 for renewal applications to $17 for original applications and $17 for renewal applications.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563.
Historically, the annual PTIN application and renewal period has begun on October 15. For 2015, the date has been postponed to November 1. There is insufficient time before November 1 to provide an opportunity for notice and public comment and issue a final regulation prior to that date. To enable the reduced fee amount to be in effect for PTINs issued or renewed by tax return preparers preparing returns in 2016, the IRS and Treasury find that there is good cause to dispense with (1) notice and public comment pursuant to 5 U.S.C. 553(b) and (c) and (2) a delayed effective date pursuant to 5 U.S.C. 553(d). It would be impracticable, unnecessary, and contrary to the public interest to continue to charge the current fee when the IRS has determined pursuant to the biennial review conducted under OMB Circular A–25 that the fee should be reduced going forward. The IRS and Treasury Department will consider public comments submitted in response to the cross-referenced notice of proposed rulemaking published elsewhere in this issue of the
For applicability of the Regulatory Flexibility Act, please refer to the cross-referenced notice of proposed rulemaking published elsewhere in this issue of the
The principal author of these regulations is Hollie M. Marx, Office of the Associate Chief Counsel (Procedure and Administration).
Reporting and recordkeeping requirements, User fees.
Accordingly, 26 CFR part 300 is amended as follows:
31 U.S.C. 9701.
(b)
(a) [Reserved]
(b)
(c) [Reserved]
(d)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for the combined residues of the insecticide metaflumizone in or on the raw agricultural commodities citrus (crop group 10–10) at 0.04 parts per million (ppm); pome fruit (crop group 11–10) at 0.04 ppm; stone fruit (crop group 12–12) at 0.04 ppm; and tree nut (crop group 14–12) at 0.04 ppm. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 30, 2015. Objections and requests for hearings must be received on or before December 29, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0607, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111),
• Animal production (NAICS code 112),
• Food manufacturing (NAICS code 311),
• Pesticide manufacturing (NAICS code 32532),
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR cite at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2014–0607 in the subject line on the first page of your submission. All requests must be in writing, and must be received by the Hearing Clerk on or before December 29, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2014–0607, by one of the following methods:
•
•
•
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with FFDCA section 408(b)(2), for a tolerance for metaflumizone, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Hematotoxicity (toxicity of the blood) was the primary toxic effect of concern following subchronic or chronic oral exposures to metaflumizone. Splenic extramedullary hematopoiesis, increased hemosiderin, and anemia were the most common hematotoxic effects reported after repeated oral dosing with metaflumizone. Chronic oral (gavage) exposures to dogs resulted in slight decreases in mean corpuscular hemoglobin concentration and total hemoglobin, leading to increased plasma bilirubin, increased urinary urobilinogen, and increased hemosiderin in the liver. In a chronic toxicity/carcinogenicity study in mice, anemia was observed in the form of increased hemosiderin in the spleen, increased mean absolute reticulocyte count, decreased mean corpuscular volume, and mean corpuscular hemoglobin.
The postulated pesticidal mode of action of metaflumizone involves inhibition of sodium channels in target insect species; however, in mammals (rats), there were only clinical signs of neurotoxicity (
Metaflumizone induced an increased incidence of a missing subclavian artery at a relatively high dose that also caused severe maternal toxicity (
Specific information on the studies received and the nature of the adverse effects caused by metaflumizone as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern (LOCs) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for metaflumizone used for human risk assessment is provided below:
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The methods and dosimetry equations described in EPA's reference concentration (RfC) guidance (1994) are suited for calculating human-equivalent concentrations (HECs) based on the inhalation toxicity point of departure (NOAEL, LOAEL, or Benchmark Dose Lower Confidence Limit (BMDL)) for use in MOE calculations. The regional-deposited-dose ratio (RDDR), which accounts for the particulate diameter (mass median aerodynamic diameter (MMAD) and geometric standard deviation (σg) of aerosols), can be used to estimate the different dose fractions deposited along the respiratory tract. The RDDR accounts for interspecies differences in ventilation and respiratory-tract surface areas. Thus, the RDDR can be used to adjust an observed inhalation particulate exposure of an animal to the predicted inhalation exposure for a human. For the subchronic inhalation toxicity study with metaflumizone, an RDDR was estimated at 2.81 based on systemic effects (lymphocyte necrosis in the mesenteric lymph node) in females at the LOAEL of 0.03 mg/L (no NOAEL established), and a MMAD of 1.7 micrometer (μm) and σg of 2.7.
For this action with metaflumizone, residential and occupational handler scenarios are being assessed. For residential handler scenarios, 2-hr/day inhalation exposures are assumed. Adjustment to shorter exposure scenarios relative to the animal toxicity study duration (
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Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of metaflumizone for acute exposures are estimated to be 1.03 parts per billion (ppb) for surface water and 1.09 x 10
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 1.03 ppb was used to assess the contribution of drinking water. For chronic dietary risk assessment, the water concentration value of 0.487 ppb was used to assess the contribution of drinking water.
3.
EPA assessed residential exposure using the following assumptions: Fire ant bait applications to home lawns are expected to result in short-term, residential handler exposure to adults. Fire ant bait applications to lawns and golf-courses are expected to result in short-term, post-application dermal exposure to adults, children 11 to <16 years old, and children 1 to <2 years old, and incident oral exposure for children 1 to <2 years old. For the fly bait product, residential handler exposure is not expected, because the product is applied by commercial handlers. The fly bait product is expected to result in short-term, post-application dermal exposure to adults, children 11 to <16 years old, and children 1 to <2 years old, and incident oral exposure for children 1 to <2 years old.
For residential handlers, dermal and inhalation exposures are combined since the endpoints are similar for these routes. For children (1- to <2-year-olds), post-application hand-to-mouth and dermal exposures are combined. Since the LOCs for the dermal, inhalation and incidental oral routes are not the same (dermal LOC = 100, inhalation LOC = 300, and incidental oral LOC = 300), these routes were combined using the aggregate risk index approach. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
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Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to metaflumizone and any other substances and metaflumizone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action; therefore, EPA has not assumed that metaflumizone has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at
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i. The toxicological database for metaflumizone is adequate for risk assessment and FQPA SF evaluation. Several studies are available for evaluating the safety of metaflumizone, although differences in dose administration and a missing NOAEL warrant retention of various FQPA safety factors in this instance.
Dietary exposures exhibited an approximately 2-fold greater absorption into the systemic circulation as compared to oral gavage and, thus, can potentially lead to toxicity at 2-fold lower levels of exposure. Applying an FQPA SF of 3x for all oral exposure scenarios is adequate to protect against any greater toxicity that might occur in dietary exposures (absorption was noted to be 2-fold greater in dietary versus oral gavage studies).
The FQPA SF of 10x is being retained for inhalation exposure scenarios for the use of a LOAEL instead of a NOAEL (no NOAEL achieved) for histopathological lesions consisting of lymphocyte necrosis in the mesenteric lymph node. The FQPA SF of 10x is adequate because the effect (lymphocyte necrosis) is considered minimal to slight and does not exhibit a strong dose dependence.
The FQPA SF for dermal exposure scenarios is being reduced from 10x to 1x since there is a route-specific study with a clear NOAEL.
ii. There is no indication that metaflumizone directly affects the nervous system. Clinical signs indicative of neurotoxicity were observed in several studies; however, these signs were generally observed in the presence of poor animal health (
iii. There are no residual concerns or uncertainties for increased sensitivity/susceptibility in developing animals resulting from pre- and/or postnatal exposure.
iv. There are no residual uncertainties identified in the exposure databases.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists. Based on the proposed/registered uses and since inhalation, dermal, and incidental oral exposures can be combined, aggregate acute (dietary), short-term (dietary, incidental oral, and/or dermal), and chronic (dietary) assessments were conducted.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate risk indices of 42 for the general population, and 22 for children 1–2 years old. Because EPA's LOC for metaflumizone is an aggregate risk index less than 1, the aggregate risks are not of concern.
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EPA previously reviewed method validation and independent laboratory validation (ILV) studies for the BASF high-performance liquid chromatography (HPLC)/mass spectrometry (MS)/MS analytical method 531/0 and forwarded the method to FDA for tolerance enforcement (46264221.der; D308394, T. Bloem, 30-Nov-2005; D328915, T. Bloem, 17-May-2006). It is noted that following method validation, BASF incorporated several minor modifications to method 531/0 with this revised method specified as 531/1 (method 531/1 is the current enforcement method). Based on the similarities of the proposed crops to that currently registered and since the grape, citrus, and tree nut residue samples
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
Codex MRLs are not established in/on the relevant crops for metaflumizone; therefore, harmonization is not an issue for this petition.
Therefore, the tolerance is established for the combined residues of the insecticide metaflumizone (2-[2-(4-cyanophenyl)-1-[3-(trifluoromethyl)phenyl]ethylidene]-
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The additions read as follows:
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of rimsulfuron in or on sorghum, grain, forage; sorghum, grain, grain; and sorghum, grain, stover. E.I. du Pont de Nemours and Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 30, 2015. Objections and requests for hearings must be received on or before December 29, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2013–0035, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2013–0035 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 29, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2013–0035, by one of the following methods:
•
•
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has revised the proposed commodity definitions. EPA has also revised the chemical name nomenclature for rimsulfuron in the tolerance expression. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for rimsulfuron including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with rimsulfuron follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Rimsulfuron has low acute toxicity by oral, dermal, and inhalation routes of exposure. It is moderately irritating to the eye, non-irritating to the skin, and is not a skin sensitizer. In subchronic and chronic toxicity studies in rats, toxic effects included decreased body weight, decreased body weight gain, increased relative liver and absolute kidney weights, and diuresis. In the subchronic study in mice, increased red blood cell and hemoglobin, and decreased body weight gain and food efficiency were observed. In the chronic study in mice, decreased body weight, increased incidences of dilation and cysts in the glandular stomach, and degeneration of the testicular artery and tunica albuginea were observed. In the subchronic study in dogs, diuresis was indicated by urinary volume, platelet concentration, and kidney weights accompanied by decreased urinary osmolality. In the chronic study in dogs, increased absolute liver and kidney weights, increased seminiferous tubule degeneration, and increased number of spermatid giant cells present in epididymides in males were observed. In both sexes, decreases in mean body weights and body weight gain, and increases in serum cholesterol levels, alkaline phosphatase activity, absolute liver weight, relative liver, and relative kidney weights were observed.
In the developmental toxicity study in rats, no toxicity was seen at the highest dose tested. In the developmental toxicity study in rabbits (in which both maternal and fetal death were observed), and in the 2-generation reproduction toxicity study in rats (in which decreases in body weight gain were observed in both parents and offspring), developmental and offspring effects were seen in the presence of maternal/systemic toxicity at the same dose levels.
In the acute and subchronic neurotoxicity studies, no evidence of neurotoxicity was observed. In the immunotoxicity study, no evidence of immunosuppression was observed. In the mutagenicity studies, no evidence of clastogenicity or mutagenicity was observed. Rimsulfuron is classified as “Not Likely to be Carcinogenic to Humans” based on lack of evidence of carcinogenicity in rats and mice studies.
Specific information on the studies received and the nature of the adverse effects caused by rimsulfuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for rimsulfuron used for human risk assessment is shown in Table 1 of this unit.
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2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM–GW), the estimated drinking water concentrations (EDWCs) of rimsulfuron for chronic exposures for non-cancer assessments are estimated to be 0.38 parts per billion (ppb) for surface water and 19.7 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 19.7 ppb was used to assess the contribution to drinking water.
3.
4.
1.
2.
3.
i. The toxicity database for rimsulfuron is complete.
ii. There is no indication that rimsulfuron is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional Uncertainty Factor (UF) to account for neurotoxicity.
iii. There is no evidence that rimsulfuron results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to rimsulfuron in drinking water. These assessments will not underestimate the exposure and risks posed by rimsulfuron.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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3.
Because there are no residential uses, no short- or intermediate-term aggregate risk assessments were conducted.
4.
5.
Adequate enforcement methodology (Method DuPont-32277, a high performance liquid chromatography with tandem mass spectroscopy (HPLC/MS/MS)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established MRLs for rimsulfuron.
The Agency is revising the proposed commodity definitions of “sorghum, forage” to “sorghum, grain, forage”; “sorghum, grain” to “sorghum, grain, grain”; and “sorghum, stover” to “sorghum, grain, stover”. The tolerance expression is revised to reflect the preferred chemical name for rimsulfuron using CAS nomenclature.
Therefore, tolerances are established for residues of rimsulfuron, N-[[(4,6-dimethoxy-2-pyrimidinyl)amino]carbonyl]-3-(ethylsulfonyl)-2-pyridinesulfonamide, in or on sorghum, grain, forage; sorghum, grain, grain; and sorghum, grain, stover at 0.01 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of teflubenzuron [
This regulation is effective October 30, 2015. Objections and requests for hearings must be received on or before December 29, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0600, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2014–0600 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 29, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2014–0600, by one of the following methods:
•
•
•
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for teflubenzuron including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with teflubenzuron follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Exposure of animals to teflubenzuron has shown no evidence of neurotoxicity, immunotoxicity, or genotoxicity. It is categorized as having low acute lethality by oral, dermal and inhalation routes of exposure. It is not a dermal sensitizer or eye irritant. In all species tested, hepatotoxicity was indicated. The liver is the primary target organ for teflubenzuron. In the mouse, which is the most sensitive species compared to the rat and the dog, liver adenomas were observed following chronic exposure. Increased enzyme release and numerous microscopic indicators of liver injury (diffuse hypertrophy, disseminated single-cell necrosis, patchy glycogen storage, Kupffer cell proliferation, phagocytic foci, lipofuscin accumulation and centrilobular fatty change) were observed in all species exposed to teflubenzuron.
The 2-generation reproductive study shows evidence of increased quantitative offspring susceptibility. There were no effects of teflubenzuron exposure on the parental generation, but effects on offspring consisted of decreased F
Because rare liver tumors were observed only in male mice and there was no evidence of carcinogenicity from teflubenzuron in female mice or in male or female rats, the Agency is using a non-linear approach (
Specific information on the studies received and the nature of the adverse effects caused by teflubenzuron as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a RfD—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for teflubenzuron used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
2.
3.
Teflubenzuron is not registered for any specific use patterns that would result in residential exposure.
4.
EPA has not found teflubenzuron to share a common mechanism of toxicity with any other substances, and teflubenzuron does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that teflubenzuron does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for teflubenzuron is complete for assessing the safety of tolerances for which there is no associated U.S. pesticide registration.
ii. There is no indication that teflubenzuron is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity.
iii. As discussed in Unit III.D.2., there is evidence of quantitative susceptibility in the rat in the 2-generation reproductive study. There is no residual concern or uncertainty regarding these effects as the study established a clear NOAEL and LOAEL. Moreover, the Agency is using a lower POD in its assessment, which will be protective of these effects.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. There are no drinking water or residential exposures as there are no U.S. registrations of pesticides containing teflubenzuron. These assessments will not underestimate the exposure and risks posed by teflubenzuron.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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6.
The petitioner submitted a high-performance liquid chromatography method with tandem mass-spectrometry detection (LC/MS/MS) analytical method, BASF Method L0160/01, for analysis of residues of teflubenzuronin/on dry and oily crop commodities. The method has been adequately validated by the petitioner as well as by an independent laboratory, and was also adequately radio validated using weathered samples obtained from metabolism studies. In addition, the Quechers multi residue method (MRM) is considered suitable for the analysis of teflubenzuron in fruits and vegetables.
Adequate enforcement methodology (high-performance liquid chromatography with tandem mass spectrometry) is available to enforce the tolerance expression.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has established a MRL for teflubenzuron in or on pome fruit at 1.0 ppm. The U.S. tolerance being established for residues of teflubenzuron on apples is harmonized with this value.
The petition requested tolerances for several livestock commodities (cattle, meat byproducts; cattle, muscle; egg; goat, meat byproducts; goat, muscle; horse, meat byproducts; horse, muscle; milk; pork, meat byproducts; pork, muscle; poultry, meat byproducts; poultry, muscle; sheep, meat byproducts; and sheep, muscle.) Based on the results of livestock feeding studies, EPA is not establishing tolerances for these commodities because there is no expectation of finite residues in livestock commodities. The tolerance proposal for apple, wet pomace is not being established because the commodity is not likely to be imported. The petitioned-for tolerance for tomato, paste is not being established because concentration of residues is not expected above the tolerance established for tomato (1.5 ppm); the tolerance for tomato will be adequate to cover any residues in tomato paste.
In the case of apple, EPA is establishing a higher tolerance (from 0.5 ppm to 1.0 ppm) to harmonize with the established Codex MRL. Based on EPA's methods for calculating residue levels on processed commodities, EPA is establishing a higher tolerance for citrus, oil (90 ppm to 100 ppm) and a lower tolerance for soybean, hulls (0.4 ppm to 0.15 ppm) than what was requested. Using the Organization for Economic Cooperation and Development (OECD) calculation procedures, EPA is establishing a higher tolerance for papaya tolerance (0.4 ppm to 0.5 ppm) and a lower tolerance for the lemon (0.90 ppm to 0.80 ppm) than was requested.
In addition, EPA is adding significant figures to tolerance levels in accordance with EPA policy for the following commodities: Broccoli; coffee, bean,
Therefore, tolerances are established for residues of teflubenzuron, in or on apple at 1.0 ppm; broccoli at 0.20 ppm; cauliflower at 0.01 ppm; citrus, oil at 100 ppm; coffee, bean, green at 0.60 ppm; corn, field, grain at 0.01 ppm; corn, field, refined oil at 0.02 ppm; lemon at 0.80 ppm; mango at 1.5 ppm; melon, subgroup 9A at 0.30 ppm; orange at 0.60 ppm; papaya at 0.50 ppm; pineapple at 0.80 ppm; soybean, seed at 0.05 ppm; soybean, hulls at 0.15 ppm; sugarcane, cane at 0.01 ppm; sunflower, seed at 0.30 ppm; and tomato at 1.5 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Bret Gates, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4133.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
In this document, the Commission amends language in its rules to reflect that regulatory fees must be paid electronically, and can no longer be paid by check or money order. Electronic payments are not only cost-effective, they are also efficient and can provide an electronic “paper trail”. As a result, in an effort to improve efficiency, the Commission discontinued the practice of paying regulatory fees with a check or money order.
Effective November 30, 2015.
Roland Helvajian, Office of Managing Director at (202) 418–0444.
These revisions to the Commission's rules were first published as a proposed rule along with the Commission's Assessment and Collection of Regulatory Fees for Fiscal Year 2014,
1. As required by the Regulatory Flexibility Act of 1980 (RFA),
2. This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. The Commission submitted the PRA documents to the Office of Management and Budget (OMB) under section 3507(d) of the PRA, and obtained OMB approval on May 30, 2014. Consequently, the requirement to obtain OMB approval for new and modified information collection has been fulfilled. Finally, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
3. The Commission will send a copy of this
4. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
5. In this Order, the Commission amends language to sections 1.1112, 1.1158, 1.1161, and 1.1164 of its rules to note that regulatory fee payments must be made electronically, and payments by check and/or money order will no longer be accepted.
6. In various places within the Code of Federal Regulations (CFR), the Commission specifies the method of payment that can be made for various types of fees (
7. None.
8. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
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23. This Report and Order does not adopt any new reporting, recordkeeping, or other compliance requirements.
24. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
25. This
26. In keeping with the requirements of the Regulatory Flexibility Act, we have considered certain alternative means of mitigating the effects of fee increases to a particular industry segment. For example, beginning in FY 2015 the Commission has increased the
27. None.
28. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r), this
29. IT IS FURTHER ORDERED that this
30. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this
Administrative practice and procedure.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:
15 U.S.C. 79,
(a) Annual and multiple year regulatory fees must be paid electronically as described in paragraph (e) of this section. Fee payments, other than annual and multiple year regulatory fee payments, should be in the form of a check, cashier's check, or money order denominated in U.S. dollars and drawn on a United States financial institution and made payable to the Federal Communications Commission or by a Visa, MasterCard, American Express, or Discover credit card. No other credit card is acceptable. Fees for applications and other filings paid by credit card will not be accepted unless the credit card section of FCC Form 159 is completed in full. The Commission discourages applicants from submitting cash and will not be responsible for cash sent through the mail. Personal or corporate checks dated more than six months prior to their submission to the Commission's lockbox bank and postdated checks will not be accepted and will be returned as deficient. Third party checks (
(1) Although payments (other than annual and multiple year regulatory fee payments) may be submitted in the form of a check, cashier's check, or money order, payors of these fees are encouraged to submit these payments electronically under the procedures described in paragraph (e) of this section.
(2) Specific procedures for electronic payments are announced in Bureau/Office fee filing guides.
(3) It is the responsibility of the payer to insure that any electronic payment is made in the manner required by the Commission. Failure to comply with the Commission's procedures will result in the return of the application or other filing.
(4) To insure proper credit, applicants making wire transfer payments must follow the instructions set out in the appropriate Bureau Office fee filing guide.
(b) Applicants are required to submit one payment instrument (check, cashier's check, or money order) and FCC Form 159 with each application or filing; multiple payment instruments for a single application or filing are not permitted. A separate Fee Form (FCC Form 159) will not be required once the information requirements of that form (the Fee Code, fee amount, and total fee remitted) are incorporated into the underlying application form.
(e) Annual and multiple year regulatory fee payments shall be submitted by online ACH payment, online Visa, MasterCard, American Express, or Discover credit card payment, or wire transfer payment denominated in U.S. dollars and drawn on a United States financial institution and made payable to the Federal Communications Commission. No other credit card is acceptable. Any other form of payment for regulatory fees (
Any annual and multiple year regulatory fee payment must be submitted by online Automatic Clearing House (ACH) payment, online Visa, MasterCard, American Express, or Discover credit card payment, or wire transfer payment denominated in U.S. dollars and drawn on a United States financial institution and made payable to the Federal Communications Commission. No other credit card is acceptable. Any other form of payment for annual and multiple year regulatory fees (
(a) Payors making wire transfer payments must submit an accompanying FCC Form 159–E via facsimile.
(a) Grant of any application or an instrument of authorization or other filing for which an annual or multiple year regulatory fee is required to accompany the application or filing will be conditioned upon final payment of the current or delinquent regulatory fees. Current annual and multiple year regulatory fees must be paid electronically as described in § 1.1112(e). For all other fees, (
Electronic payments are considered timely when a wire transfer was received by the Commission's bank no later than 6:00 p.m. on the due date; confirmation to pay.gov that a credit card payment was successful no later
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Interim final rule.
PHMSA is issuing an interim final rule to prohibit passengers and crewmembers from carrying battery-powered portable electronic smoking devices (
Because the actions taken in this interim final rule address a public safety risk, PHMSA finds that good cause exists to amend the regulations without advance notice and opportunity for public comment. For the reasons described below, public notice is impracticable, unnecessary, and contrary to the public interest. PHMSA encourages persons to participate in this rulemaking by submitting comments containing relevant information, data, or views. We will consider all comments received on or before the closing date for comments. We will consider late filed comments to the extent practicable. This interim final rule may be amended based on comments received.
You may submit comments by any of the following methods:
1.
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4.
Kevin A. Leary, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366–8553.
A battery-powered portable electronic smoking device (e-cigarette), also called an e-cig, a personal vaporizer or electronic nicotine delivery system, is a battery-powered device that simulates tobacco smoking. E-cigarettes contain a liquid, an atomizer or heating element, and a battery. When an e-cigarette is operated by a user, the heating element vaporizes the liquid. Many e-cigarettes are designed to look like traditional cigarettes, but they are also made to look like cigars, pipes, and even everyday products such as pens. The use of e-cigarettes has been rising substantially and e-cigarettes have increasingly become a common item in passenger baggage. Airline passengers and crewmembers are currently permitted to carry these devices under the provisions for portable electronic devices contained in 49 CFR 175.10(a)(18). However, the provisions for portable electronic devices do not adequately address the safety risks posed by e-cigarettes, which include a heating element as a function of their design.
Recent fire incidents involving e-cigarettes in checked baggage, along with actions taken by the Federal Aviation Administration (FAA) and ICAO, highlight the need for PHMSA to take prompt action to address this issue.
On August 9, 2014, at Boston's Logan Airport, an e-cigarette contained in a passenger's checked bag in the cargo hold of a passenger aircraft caused a fire that forced an evacuation of the aircraft. An airline ramp agent noticed smoke coming from the bag. The bag was removed from the aircraft cargo compartment and investigators determined the source of the fire was an e-cigarette, which continued to burn after it was removed from the bag. Air carrier personnel extinguished the fire. Massport Fire responded and ensured the fire was no longer burning. The fire
On January 4, 2015, at Los Angeles International Airport, a checked bag that arrived late and missed its connecting flight was found to be on fire in a baggage area. Emergency responders attributed the fire to an overheated e-cigarette inside the bag.
These incidents have shown that e-cigarettes can overheat and cause fires when the heating element is accidentally activated or turned on. This danger may be exacerbated by the growing trend of users modifying and rebuilding their reusable e-cigarette devices and swapping components, which may include the use of batteries, heating elements, and electronic components not original to the manufactured e-cigarette.
An October 2014 report from the U.S. Fire Administration
Following the fire at Logan Airport, on December 10, 2014, the ICAO issued an Electronic Bulletin (EB) titled, Dangerous Goods Carried by Passenger and Crew—Incidents Related to Electronic Cigarettes (EB 2014/074).
On January 22, 2015, the FAA issued a Safety Alert for Operators (SAFO)
Effective June 9, 2015, the ICAO published an addendum to the 2015–2016 ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air to prohibit carriage of e-cigarettes in checked baggage and restrict the charging of these devices while on board the aircraft. This addendum constitutes an amendment to the 2015–2016 ICAO Technical Instructions, which took effect on January 1, 2015. On January 8, 2015, PHMSA published a rulemaking harmonizing the HMR with the 2015–2016 ICAO Technical Instructions. This issuance of this interim final rule is necessary to incorporate the June 9, 2015 amendment to the Technical Instructions to address the known safety risk.
The partial restriction in this interim final rule applies only to battery-powered portable electronic smoking devices (
PHMSA is issuing this interim final rule without providing an opportunity for prior public notice and comment as is normally required by the Administrative Procedure Act (APA). See 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds for good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). “Good cause” exists in impracticable situations when notice unavoidably prevents the due and required execution of agency functions or when an agency finds that due and timely execution of its functions is impeded by the notice otherwise required by the APA. For example, an “impracticable” good cause situation might be where air safety rules should be amended without delay if the FAA determines that the safety of the traveling public is at stake. Public notice is unnecessary when the public does not need or benefit from the notice and comment, such as with a minor or technical amendment. “Public interest” supplements the other terms and requires that public rulemaking procedures must not prevent an agency from operating and that a lack of public concern warrants an agency dispensing with public procedure.
In this case, the agency finds, for good cause, that notice and public comment is impracticable, unnecessary, and contrary to the public interest. The importance of the safety of the flying public provides good cause for this measure. Here, there is a credible indication of an emerging transportation safety risk from two recent incidents involving battery-powered portable electronic smoking devices in checked baggage and additional non-transportation incidents that occurred while these types of devices were being charged. In August 2014 at Boston's Logan Airport, an e-cigarette contained in a passenger's checked bag caught fire pre-flight and caused the evacuation of an airplane. Similarly, in January 2015 at Los Angeles International Airport, a bag containing an e-cigarette was found to be on fire in a baggage area. The bag in question had missed a flight connection, and should have been in the air at the time of the incident. Although neither airplane was in the air when the fires ignited, these incidents represent two near misses for the safety of aviation passengers. E-cigarettes in checked bags present a safety risk because the devices are capable of generating extreme heat and an incident can result in the ignition of nearby contents. Carriage of e-cigarettes in the passenger cabin addresses this safety risk by ensuring that if an incident does occur, it can be immediately identified and mitigated. PHMSA believes that a delay in implementing this measure could result in serious harm to the traveling public.
Under these circumstances, notice is impracticable and contrary to the public interest. Because ICAO issued the addendum on a very short timeframe due to the gravity of the safety risk, the HMR are currently not harmonized with the ICAO Technical Instructions. Given the safety risks posed by e-cigarettes in checked baggage, PHMSA believes that public notice would frustrate the due and required execution of agency functions. Although some airlines have voluntarily complied with the SAFO recommendations, there is no domestic regulation to require continued compliance with the recently adopted ICAO amendment. Typically, PHMSA
Further, PHMSA believes that APA notice and comment would be unnecessary because the public would not benefit from such notice. The scope of this regulatory change is very limited; PHMSA is including a new entry for e-cigarettes in 49 CFR 175.10 with carriage instructions. The change does not impact whether passengers may bring their e-cigarettes on an airplane. Instead, the new language affects how the e-cigarettes must be stowed. This rulemaking does not impact the ability to travel by air with these devices. FAA's January 2015 SAFO recommended that air carriers require their passengers to carry e-cigarettes and related devices exclusively in the cabin of the aircraft. In voluntary compliance with the SAFO, many airlines instruct passengers to carry their e-cigarettes in carry-on baggage only. Because a substantial degree of compliance with this safety provision already exists through voluntary airline actions, this amendment is limited in scope yet pivotal for the safety of the traveling public. Thus, in light of the recent safety incidents and limited scope of the June 9, 2015, ICAO amendment, PHMSA has determined that the notice and comment rulemaking process is unnecessary, impracticable, and contrary to the public interest in this instance.
The DOT is taking immediate action to strengthen safeguards for the carriage of battery-powered portable electronic smoking devices in passenger checked baggage and prohibit passengers and crewmembers from charging the devices and/or batteries on board the aircraft. This interim final rule is effective seven days after publication in the
The Regulatory Policies and Procedures of DOT (44 FR 110034; February 26, 1979) provide that, to the maximum extent possible, DOT operating administrations should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, PHMSA encourages persons to participate in this rulemaking by submitting comments containing relevant information, data, or views. We will consider all comments received on or before the closing date for comments. We will consider late filed comments to the extent practicable. This interim final rule may be amended based on comments received.
This interim final rule is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
The Department has determined that the transportation of battery-powered portable electronic smoking devices in checked baggage is an immediate safety threat. Therefore, this rule is being issued to address an emergency situation within the meaning of Section 6(a)(3)(D) of Executive Order 12866. Under section 6(a)(3)(D), in emergency situations, an agency must notify OMB as soon as possible and, to the extent practicable, comply with subsections (a)(3)(B) and (C) of section 6 of EO 12866. The Department has notified and consulted with OMB on this interim final rule. We do not anticipate the actions in this interim final rule will impose a significant impact on airlines, airline passengers, crewmembers, or the Federal government. We expect airlines will incur minimal costs associated with updating notifications to airline passengers (
Under the Department of Transportation's Regulatory Policies and Procedures (44 FR 11034), this rule is considered to be an emergency regulation. The Department has determined that an immediate safety threat exists in the carriage of battery-powered portable electronic smoking devices in checked baggage and, therefore, this rule is considered to be an emergency regulation. Because of the need to move quickly to address this risk, it would be impractical, unnecessary, and contrary to the public interest to follow the usual procedures under the DOT order.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule preempts State, local and Indian tribe requirements but does not impose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101–27, contains express preemption provisions (49 U.S.C. 5125) that preempt inconsistent State, local, and Indian tribe requirements, including requirements on the following subjects:
(1) The designation, description, and classification of hazardous materials;
(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;
(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.
This rule addresses subject items (1) and (2) described above and, accordingly, State, local, and Indian tribe requirements on these subjects that do not meet the “substantively the same” standard will be preempted.
Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this interim final rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.
Section 603 of the Regulatory Flexibility Act (RFA) requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553 to publish a general notice of proposed rulemaking for any proposed rule. Similarly, section 604 of the RFA requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after being required to publish a general notice of proposed rulemaking. Because of the need to move quickly to address the identified risk, prior notice and comment would be contrary to the public interest. As prior notice and comment under 5 U.S.C. 553 are not required to be provided in this situation, the analyses in 5 U.S.C.s 603 and 604 are not required.
This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $155,000,000 or more, adjusted for inflation, to either State, local or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule.
There are no new information collection requirements in this final rule.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321–4347), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. This interim final rule prohibits the carriage of battery-powered portable electronic smoking devices in checked baggage and the charging of such devices on board a passenger-carrying aircraft. Airline passengers will still be permitted to carry their e-cigarettes in their carry-on baggage or on their person. In other words, the interim final rule only impacts how a passenger may carry battery-powered portable electronic smoking devices on aircraft, not whether a passenger can carry such devices. We find that there are no significant environmental impacts associated with this interim final rule.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, we amend 49 CFR Chapter I as follows:
49 U.S.C. 5101–5128, 44701; 49 CFR 1.81 and 1.97.
(a) * * *
(19) Except as provided in § 173.21 of this subchapter, battery-powered portable electronic smoking devices (
(i) For lithium metal batteries, a lithium content of 2 grams; or
(ii) For lithium ion batteries, a Watt-hour rating of 100 Wh.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), in coordination with the State of Wyoming and other partners, will reestablish additional populations of the black-footed ferret (
This rule becomes effective November 30, 2015.
This final rule, along with the public comments, environmental assessment (EA), and finding of no significant impact (FONSI), is available on the Internet at
Mark Sattelberg, Field Supervisor, Telephone: 307–772–2374. Direct all questions or requests for additional information to: BLACK–FOOTED FERRET QUESTIONS, U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office, 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 1–800–877–8337 for TTY assistance.
This is a final rule to designate the black-footed ferret (
Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may establish an NEP, outside of the current range of the species, but within its historical range, for the purposes of reintroducing the species into formerly occupied habitat. Under this 10(j) rule, the Service is classifying any reestablished black-footed ferret population in the State of Wyoming as an NEP. The Service has determined that this NEP designation meets the requirements of the Act; the population is wholly geographically separate from other populations, and the experimental population is not essential to the
This NEP designation will apply to all ferrets reintroduced to Wyoming, with the exception of animals found on lands managed by the National Park Service or U.S. Fish and Wildlife Service. Under a section 10(j) designation as an NEP, both the take prohibitions and consultation requirements of the Act are relaxed, easing regulatory burden associated with endangered species and facilitating acceptance by local landowners and managers.
Once this rule takes effect, the Service, the Wyoming Game and Fish Department (WGFD), and other partners propose to reintroduce the black-footed ferret at one or more additional sites within the species' historical range in Wyoming. The WGFD will serve as the lead agency in the reintroduction and subsequent management of black-footed ferret in Wyoming; however, WGFD will continue to coordinate closely with the Service on these restoration efforts.
Costs and benefits of a Statewide NEP designation in Wyoming will depend upon the number and type of reintroduction efforts initiated. The Black-footed Ferret Recovery Plan estimates that 35,000 acres (ac) (14,000 hectares (ha)) of purposefully managed prairie dog occupied habitat will be needed to meet Wyoming's portion of the rangewide habitat goal for downlisting, and 70,000 ac (28,000 ha) to meet their portion of the rangewide habitat goal for delisting (USFWS 2013a, Table 8). This equates to purposeful management of approximately 2 percent of prairie dog occupied habitat in Wyoming to meet their portion of the rangewide habitat goal for delisting. We completed an environmental assessment for this action, which analyzes potential impacts of reestablishing black-footed ferrets in Wyoming under section 10(j) of the Act. Participation in this recovery effort is entirely voluntary and would not occasion any substantive change in land use by participants; consequently, we anticipate that the benefits of reintroduction will off-set the costs incurred for any recovery partners who choose to participate.
The black-footed ferret was listed as endangered throughout its range on March 11, 1967 (32 FR 4001), and again on June 2, 1970 (35 FR 8491), under early endangered species legislation and was “grandfathered” under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
The 1982 amendments to the Act (16 U.S.C. 1531
Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild; (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations; and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and
Based on the best scientific and commercial data available, we must determine whether the experimental population is
For the purposes of section 7 of the Act, we treat an NEP as a threatened species only when the NEP is located within a National Wildlife Refuge or unit of the National Park Service. In these areas, the Federal agency conservation requirements under section 7(a)(1) and the Federal agency consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat.
When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Because the NEP is, by definition, not essential to the continued existence of the species, the effects of proposed actions affecting the NEP will generally not rise to the level of jeopardizing the continued existence of the species. As a result, a formal conference will likely never be required for black-footed ferrets established within the NEP area. Nonetheless, some agencies voluntarily confer with the Service on actions that may affect a proposed species. Activities that are not carried out, funded, or authorized by Federal agencies are not subject to provisions or requirements in section 7.
On April 10, 2015, the Service published a proposed rule in the
Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.
The endangered black-footed ferret is the only ferret species native to the Americas (Anderson
The black-footed ferret depends almost exclusively on prairie dogs for food and on prairie dog burrows for shelter (Hillman 1968, p. 438; Biggins 2006, p. 3). Historical habitat of the ferret coincided with the ranges of the black-tailed prairie dog (
Black-footed ferrets historically occurred throughout most of Wyoming. Specifically, black-footed ferrets occurred within black-tailed prairie dog habitat in the eastern portion of the State and white-tailed prairie dog habitat in the west; black-footed ferrets did not occur in the extreme northwest corner of the State (Anderson
In 1991, a reintroduced population of ferrets was established in Shirley Basin, Wyoming as an NEP in accordance with section 10(j) of the Act. In 2001, the Wolf Creek, Colorado, reintroduction site was also established as an NEP under section 10(j), and includes a small portion of Sweetwater County, Wyoming, in the experimental population area. However, no evidence of ferrets from the Wolf Creek reintroduction effort has been found in Sweetwater County or elsewhere in Wyoming. The Shirley Basin NEP persists today. The map at the conclusion of this rule identifies the existing NEPs in Wyoming.
All known black-footed ferrets in the wild are the result of reintroduction efforts. There have been 24 ferret reintroduction projects, beginning in 1991, at Shirley Basin in the southeastern portion of Wyoming. Shirley Basin contains the only ferret population currently in Wyoming.
The downlisting criteria for the black-footed ferret include establishing at least 1,500 free-ranging breeding adults in 10 or more populations, in at least 6 of 12 States within the historical range of the species, with no fewer than 30 breeding adult ferrets in any population; delisting criteria include establishing at least 3,000 free-ranging breeding adults in 30 or more populations, in at least 9 of 12 States within the historical range of the species, with no fewer than 30 breeding adults in any population (USFWS 2013a, pp. 61–62). In our recovery plan for the ferret, we suggest recovery guidelines for the States that are proportional to the amount of prairie dog habitat historically present. A proportional share for Wyoming would include approximately 171 free-ranging breeding adult ferrets to meet their portion of the rangewide numerical goal for downlisting and 341 breeding adults to meet their portion of the rangewide numerical goal for delisting (USFWS 2013a, Table 8).
Approximately 100 breeding adult black-footed ferrets have been established at Shirley Basin, Wyoming (USFWS 2013a, Table 8). Shirley Basin is one of four currently successful ferret reintroduction sites—other successful sites include two in South Dakota and one in Arizona (USFWS 2013a, p. 73). We are confident that Wyoming can support additional successful reintroduction sites, based on the amount of available habitat (see the following section on
The NEP area for Wyoming is Statewide, with the exception of the two areas where a NEP designation for black-footed ferret already exists (see below). In combination, these three NEPs collectively cover the entire State of Wyoming. Suitable habitat for ferret reintroduction will likely be limited to Albany, Big Horn, Campbell, Carbon, Converse, Crook, Fremont, Goshen, Hot Springs, Johnson, Laramie, Lincoln, Natrona, Niobrara, Park, Platte, Sheridan, Sublette, Sweetwater, Uinta, Washakie, and Weston Counties because these counties have sufficient prairie dog habitat to support viable ferret populations. We are not aware of any prairie dog complexes suitable for ferret reintroduction on or adjacent to Tribal lands in Wyoming. The nearest potential reintroduction sites to Tribal lands are two white-tailed prairie dog complexes––Fifteen-mile Complex near Worland in Hot Springs County and Sweetwater Complex near Sweetwater Station in Fremont County (Luce 2008, pp. 29–30). Both sites are of intermediate potential for ferret reintroduction and are located approximately 19 miles (30 kilometers) from any reservation boundaries.
Any ferrets found in Wyoming would be considered part of an NEP. There are many historical records of ferrets in Wyoming (Anderson
Several sites in Wyoming are suitable for reintroduction of black-footed ferrets in addition to the Shirley Basin site. The main requirements for ferret reintroduction are: (1) An area of occupied prairie dog habitat that is purposefully managed and of sufficient size to support a viable population of ferrets (a minimum of 1,500 ac (608 ha) of black-tailed prairie dog occupied habitat or 3,000 ac (1,215 ha) of white-tailed or Gunnison's prairie dog occupied habitat); (2) a willing landowner; and (3) a management plan that addresses sylvatic plague. Recent estimates of prairie dog occupied habitat in Wyoming include 2,893,487 ac (1,171,862 ha) in the white-tailed prairie dog range and 229,607 ac (92,991 ha) in the black-tailed prairie dog range (Van Pelt 2013, pp. 8, 14). Luce (2008, pp. 28–31) identified several sites in Wyoming with potential for ferret reintroduction including one site with potential for reintroduction within less than 3 years, 24 sites with potential for reintroduction within 3 to 10 years, and two sites with long-term potential for reintroduction.
The Service and its partners have initiated 24 black-footed ferret reintroduction projects since 1991. These projects have experienced varying degrees of success. However, all reintroduction efforts have contributed to our understanding of the species' needs. Recovery of the species is a dynamic process that requires adaptive management.
Some transfers of individual black-footed ferrets between populations will likely be necessary in perpetuity to maintain genetic diversity in the face of habitat fragmentation and as a management tool for sylvatic plague (until additional plague vaccines can be adapted for field use). Nevertheless, we believe that recovery can be achieved through a combination of expansion of ferret populations at existing reintroduction sites and reintroduction of ferrets at new sites, both of which are possible if conservation of prairie dog occupied habitat and disease management are aggressively pursued.
Participation by all States within the historical range of the black-footed ferret is important to maximize resilience of
Sustaining black-footed ferret numbers during periodic outbreaks of sylvatic plague will require ongoing management, potentially including dusting prairie dog burrows with flea control powder and vaccinating ferrets prior to release. Additionally, research is currently underway investigating the potential for supporting ferrets at reintroduction sites by providing a vaccine to wild prairie dogs via oral bait.
Based upon the past history of successful management at Shirley Basin, Wyoming, and the substantial amount of prairie dog occupied habitat available for additional reintroduction of black-footed ferrets, we believe there is a high likelihood of population establishment and survival in Wyoming.
The black-footed ferret rangewide population declined for three principal reasons: (1) A major conversion of native rangeland to cropland, particularly in the eastern portion of the species' range, beginning in the late 1800s; (2) poisoning of prairie dogs to reduce competition with domestic livestock for forage, beginning in the early 1900s; and (3) the inadvertent introduction of sylvatic plague, which causes mortality to both ferrets and prairie dogs, beginning in the 1930s. The combined effects of these three factors resulted in a rangewide decrease in the amount of habitat occupied by prairie dogs from approximately 100 million ac (40.5 million ha) historically to 1.4 million ac (570,000 ha) in the 1960s (USFWS 2013a, pp. 23–24). This habitat loss and fragmentation resulted in a corresponding decrease in ferrets, which require relatively large areas of prairie dog occupied habitat to maintain viable populations. By the 1960s, only two remnant ferret populations remained—in Mellette County, South Dakota, and in Meeteetse, Wyoming (Lockhart
Wyoming has had less rangeland converted to cropland than most other States within the historical range of the black-footed ferret (U.S. Department of Agriculture 2005, Table 1). Consequently, prairie dog poisoning and sylvatic plague are likely the two primary reasons for extirpation of ferrets from the State. Extensive poisoning of prairie dogs had begun in Wyoming by 1916 (Clark 1973, p. 89), and plague was present in Wyoming by 1936 (Eskey and Haas 1940, p. 4). Occupied prairie dog habitat reached a low in Wyoming in the early 1960s when approximately 64,336 ac (26,056 ha) were reported (U.S. Bureau of Sport Fisheries and Wildlife 1961, Table 1). However, large-scale poisoning of prairie dogs no longer occurs, and the use of poisons is more closely regulated than it was historically. Improved plague management, including dusting prairie dog burrows with insecticide to control fleas (the primary vector for plague transmission), is also being used, and the development of vaccines that prevent plague in prairie dogs and black-footed ferrets is underway. The most recent surveys estimate 3,123,094 ac (1,264,853 ha) of occupied prairie dog habitat in Wyoming (Van Pelt 2013, pp. 8, 14). This considerable increase over the past 50 years indicates that there has been a reduction in threats and improved management of prairie dogs. This increases the likelihood of successful reintroduction of ferrets in Wyoming.
The Service will cooperate with other Federal agencies, WGFD, Tribes, landowners, and other stakeholders to develop, implement, and maintain long-term site management before, during, and after releases. Partners will collect habitat data for site evaluation and documentation of baseline conditions and develop management plans for prairie dogs and plague prior to any release of black-footed ferrets. All applicable laws regulating the protection of ferrets will be followed (see section on
All reintroduction efforts will follow techniques described in Roelle
Eighteen black-footed ferrets were captured from the last wild population at Meeteetse, Wyoming in 1985–1987, and used to initiate a captive-breeding program (Lockhart
Black-footed ferrets used to establish any experimental population in the Wyoming NEP area will either be translocated wild-born kits from another self-sustaining reintroduced population (such as Shirley Basin) or come from one of six captive-breeding populations currently housed at the U.S. Fish and Wildlife Service National Black-footed Ferret Conservation Center near Wellington, Colorado; the Cheyenne Mountain Zoological Park, Colorado Springs, Colorado; the Louisville Zoological Garden, Louisville, Kentucky; the Smithsonian Biology Conservation Institute, Front Royal, Virginia; the Phoenix Zoo, Phoenix, Arizona; or the Toronto Zoo, Toronto, Ontario.
The Service and its partners maintain a captive-breeding population of approximately 280 breeding adult black-footed ferrets in order to provide a sustainable source of ferrets for reintroduction. The captive-breeding facilities produce approximately 120 to 240 juvenile ferrets annually. Approximately 80 juveniles are retained annually at these facilities for future captive-breeding purposes. The remaining juveniles are allocated annually for reintroduction, or occasionally for research (USFWS 2013a, p. 81). Ferrets selected for reintroduction under this final rule will be genetically redundant to animals maintained for captive-breeding. Consequently, any loss of reintroduced ferrets will not impact the genetic diversity of the species. Only ferrets that are surplus to the needs of the captive-breeding program are used for reintroduction into the wild. Therefore, any loss of an experimental population in the wild will not threaten the survival of the species as a whole. Therefore, there will be no effects on donor populations beyond those which are intended and accounted for in the management of wild or captive populations.
The effects of using black-footed ferrets from any captive or wild-born donor populations for releases into the Wyoming NEP area will be examined through our section 10 permitting authority and section 7 consultation process to ensure that their use is not likely to jeopardize the continued existence of the species in the wild. We based this determination on the following: (1) As an NEP, black-footed ferrets utilized for reintroductions are not essential to the survival of the species; (2) The 10(j) rule is expected to result in the creation of additional reintroduction areas in Wyoming; (3) Measures to avoid and minimize the incidental take of black-footed ferrets will be implemented within reintroduced populations; (4) The 10(j) rule will likely constitute a beneficial effect for the black-tailed and white-tailed prairie dog, as it includes measures to reduce the incidence of sylvatic plague, the primary factor responsible for the decline of these two species. This will result in an increase in the reproduction, numbers and distribution of the black-footed ferret, and therefore not resulting in reducing appreciably the likelihood of survival and recovery.
Additional successful reintroductions of ferrets are necessary for recovery of the species. Once this rule takes effect (see DATES, above), any releases of ferrets in Wyoming will be part of an NEP because of the need for increased management flexibility, which will encourage landowner participation and alleviate concerns regarding possible land use restrictions.
This 10(j) rule is designed to broadly exempt from the section 9 take prohibitions any take of black-footed ferrets that is incidental to otherwise lawful activities. We provide this exemption because we believe that such incidental take of members of the NEP associated with otherwise lawful activities is necessary and advisable for the conservation of the species.
This designation is justified because no adverse effects to extant wild or captive black-footed ferret populations will result from release of progeny from either a wild or captive donor population onto a new reintroduction site. We also expect that any reintroduction efforts in Wyoming will result in the successful establishment of a self-sustaining population, which will contribute to the recovery of the species.
We conclude that the effects of Federal, State, or private actions and activities will not pose a substantial threat to black-footed ferret establishment and persistence in Wyoming because most activities currently occurring in the NEP area are compatible with ferret recovery and there is no information to suggest that future activities would be incompatible with ferret recovery. We base this conclusion on experience at previous reintroduction sites, where incidental take associated with otherwise lawful activities such as ranching and energy development has been low. Poisoning of prairie dogs can occur in prairie dog habitat and could result in habitat loss or incidental take of ferrets. However, poisoning within a reintroduction site is very restricted, occurring only in specific instances where protection of residences, resources, or infrastructure on participating farm and ranch lands becomes necessary. These considerations are planned for in cooperation with participating landowners and stakeholders and documented in site-specific management plans that must be approved by the Service before ferrets are allocated to any reintroduction sites. Poisoning with the anticoagulant Rozol® at current and future reintroduction sites, however, is prohibited by Environmental Protection Agency label that governs use of Rozol (USFWS 2013a, p. 50). Prairie dog control programs may also be necessary at the boundary between ferret reintroduction sites and adjacent properties in order to maintain local support for the reintroduction. If boundary control is necessary because prairie dogs have encroached onto adjacent properties where prairie dogs are not wanted, it is carefully managed. Lethal control of prairie dogs should not be employed at a level that would reduce prairie dog occupied habitat to the extent that the viability of any potential ferret population is compromised—a minimum of 1,500 ac (608 ha) of black-tailed prairie dog occupied habitat or 3,000 ac (1,215 ha) of white-tailed or Gunnison's prairie dog occupied habitat is needed to sustain a viable ferret population.
The Service will coordinate closely with WGFD and other partners in the management of any black-footed ferrets in Wyoming that are reintroduced under section 10(j) authorities. Management of ferret populations in the Wyoming NEP
Management plans will be site-specific with management strategies based on site-specific characteristics (
Most of the area containing suitable release sites with high potential for ferret establishment is managed by the BLM, the USFS, or private landowners, and is currently protected through the following mechanisms.
(1) Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
(2) National Forest Management Act of 1976, as amended (16 U.S.C. 1600
(3) Wyoming State Law—The responsibilities of WGFD are defined in Wyoming Statute section 23–1–103, which instructs the WGFD to provide an adequate and flexible system for the control, management, protection, and regulation of all Wyoming wildlife. The Statute defines the black-footed ferret as a protected animal. The WGFD also defines the ferret as a “species of greatest conservation need” (Wyoming Game and Fish Department 2010, pp. IV–2–10–IV–2–13). This final rule has been developed in cooperation with the State to address any concerns and initiate additional ferret reintroductions in Wyoming. The WGFD has successfully managed the ferret at the Shirley Basin Reintroduction site since 1991. Therefore, we anticipate appropriate management by WGFD on any future ferret reintroduction sites in Wyoming.
Management issues related to the black-footed ferret Wyoming NEP area that have been considered include:
(a)
(b)
(c)
(d)
(e)
Nearly all of the aforementioned species have habitat requirements such as forests, dunes, wetlands, or river systems that differ from the grassland prairie habitat requirements for the black-footed ferret. The only species that may be affected by reintroduction projects for the ferret in the Wyoming NEP area, other than the ferret, is the greater sage-grouse. At the time of the proposed 10(j) rule, the greater sage-grouse was a candidate species. Recently, the Service determined that the greater sage-grouse is no longer warranted for listing under the Act (80 FR 59858; October 2, 2015). The greater sage-grouse requires large, interconnected expanses of sagebrush (Connelly
Direct adverse effects to greater sage-grouse can occur from the application of zinc phosphide-based pesticides to manage expanding prairie dog colonies at reintroduction sites. Because the application of zinc phosphide will occur in July through February, greater sage-grouse (males, hens, and broods) may ingest zinc phosphide and become sickened or die. We determined that the issuance of this Federal rule to designate the black-footed ferret as a nonessential experimental population in the State of Wyoming in accordance with section 10(j) of the Act is not likely to jeopardize the continued existence of the greater sage-grouse based on the following: (1) The use of zinc phosphide is anticipated to be relatively rare at reintroduction sites, which minimizes exposure risk; (2) zinc phosphide can only be applied by a certified pesticide applicator, which minimizes misapplication and exposure risk to non-targeted species; and (3) there are approximately 43,000,000 acres of estimated greater sage-grouse habitat in Wyoming. To meet delisting guidelines in the Black-footed Ferret Recovery Plan, there must be 70,000 acres of prairie dog habitat. Thus, most greater sage-grouse habitat in Wyoming would not be impacted by the proposed action.
(f)
Reintroduction Effectiveness Monitoring: Partners will monitor population demographics and potential sources of mortality, including plague, annually for 5 years following the last release using spotlight surveys, snow tracking, other visual survey techniques, and possibly radio-telemetry of some individuals. Thereafter, demographic and genetic surveys will be completed periodically to track population status. Surveys will incorporate methods to monitor breeding success and long-term survival rates. In general, the Service anticipates that monitoring will be
Donor Population Monitoring: Ferrets used for reintroduction will either be from the captive-breeding population or translocated from another viable reintroduction site. Ferrets in the captive-breeding population are managed and monitored in accordance with the Association of Zoos and Aquariums (AZA) Black-footed Ferret Species Survival Plan (SSP®). A breeding population of 280 animals will be maintained to provide a sustainable source of ferrets for reintroduction. The AZA SSP® Husbandry Manual provides up-to-date protocols for the care, propagation, preconditioning, and transportation of captive ferrets, and is used at all participating captive-breeding facilities. Ferrets may also be translocated from other reintroduction sites (which also originated from captive sources), provided their removal will not create adverse impacts upon the donor population and provided appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. Population monitoring will be conducted at all donor sites.
Monitoring Impacts to Other Listed Species: We do not expect impacts to other federally listed species (see discussion under (e), above). The greater sage-grouse is the only species with habitat that might overlap with the black-footed ferret. However, we do not expect ferret reintroduction efforts to adversely impact greater sage-grouse for the reasons previously discussed. The WGFD conducts annual monitoring of the greater sage-grouse statewide. Additional monitoring will occur on non-federal lands enrolled in the Wyoming Candidate Conservation Agreement with Assurances for the greater sage-grouse and on Federal lands enrolled in the Wyoming Candidate Conservation Agreement for the greater sage-grouse.
In the proposed rule published on April 10, 2015 (80 FR 19263), we requested that all interested parties submit written comments on the proposal by June 9, 2015. We also contacted appropriate federal and state agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal.
During the public comment period on the proposed rule, we received a total of 29 comment letters addressing the proposed rule and several comments that were not relevant to the proposed rule. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with the black-footed ferret and its habitat, biological needs, recovery efforts, and threats. We received responses from all three of the peer reviewers.
We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the establishment of a nonessential experimental population designation for black-footed ferret in the State of Wyoming. In general, the peer reviewers stated that the proposed rule provided an accurate summation of the best available scientific information on the biology, current status, and recovery efforts for black-footed ferret, and that the proposed establishment of an NEP area in Wyoming to facilitate black-footed ferret reintroduction is well supported by the best available scientific information. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
(1)
This cooperative approach is consistent with our 2013 Memorandum Of Uderstanding (MOU), which committed the Service, the State of Wyoming, and other Federal partners (“Parties”) to work collaboratively to develop and implement the NEP area designation (WGFD and USFWS 2013). This MOU includes the following guiding principles, among others: (1) The Parties agree that they will collaboratively identify, and prioritize, prospective ferret reintroduction sites in Wyoming outside of the current 10(j) areas (
The Service will continue to play an active role in black-footed ferret recovery in Wyoming as outlined in the MOU and through the Service's oversight of the black-footed ferret allocation process. The Service determines, based on reintroduction proposals, which reintroduction sites receive captive born ferrets (
(2)
Under the revised Black-footed Ferret Recovery Plan, the species may be downlisted from endangered to threatened when at least 10 ferret populations, each with at least 30 breeding adults, are established. Thus, downlisting is based on biological parameters (
(3)
(4)
(5)
(6)
The Service would have no additional section 7 consultation role regarding the use of Rozol® at reintroduction sites in Wyoming, except in National Parks and National Wildlife Refuges. However, through the allocation process of providing captive ferrets to reintroduction sites, we determine which sites will receive ferrets. We do not support the use of Rozol® or other anticoagulants for control of prairie dogs, particularly at black-footed ferret reintroduction sites. Boundary control of prairie dogs at reintroduction sites is sometimes necessary because prairie dogs have encroached onto adjacent properties where prairie dogs are not wanted. If boundary control becomes necessary to maintain relations with neighboring landowners, we support the use of zinc phosphide in these instances. In comparison with Rozol®, which has a high risk of secondary poisoning of wildlife, zinc phosphide-based pesticides pose fewer risks to non-target wildlife when properly applied by a certified pesticide applicator as required by label.
(7)
(8)
Implementation of this Statewide 10(j) rule will significantly reduce the administrative burden that would have been associated with development of multiple site-specific rules. In this case, the WGFD is not precluded from coordinating simultaneously with multiple landowners and evaluating sites for potential reintroduction. We believe under this Statewide 10(j) rule, the process for black-footed ferret reintroductions in Wyoming will be effectively streamlined. Encouragingly, following publication of the proposed rule in the
(9)
(10)
(11)
We stated in the EA and proposed rule that there are approximately 418 breeding adult ferrets in the wild, including approximately 102 breeding adults in the reintroduced population at Shirley Basin, Wyoming, as was reported in the 2013 Black-footed Ferret Recovery Plan (USFWS 2013a, Table 2). The reviewers are correct that the value for Shirley Basin is an estimate derived from surveys conducted in 2010. A more recent report gives the same estimate of approximately 100 breeding adults in Shirley Basin based on the 2010 survey and approximately 295 breeding adults rangewide (Black-footed ferret Recovery and Implementation Team Conservation Subcommittee Report 2014, Table 1). The current Shirley Basin estimate is based on the best available science and is meant to provide the most accurate assessment of the magnitude of the population size rather than the precise number of individuals, which can fluctuate considerably for the reasons given above.
(12)
(13)
(14)
The Service recognizes that understanding how to control or preferably eradicate sylvatic plague is critical to black-footed ferret conservation. The complex dynamics of sylvatic plague are not fully understood. As scientific knowledge of sylvatic plague advances, that information will be incorporated into management plans that address sylvatic plague. Although research projects are not required program elements for ferret allocations to reintroduction sites, the Service encourages, supports, and may give greater priority to projects that incorporate research elements addressing specific ferret recovery problems or questions.
(15)
(16)
All determinations on essentiality are made prior to any reintroduction action being taken. It is instructive that Congress did not put requirements in section 10(j) to reevaluate the classification after a reintroduction has occurred. While our regulations require a “periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species” (50 CFR 17.81(c)(4)), this has not been interpreted as requiring reevaluation and reconsideration of sites' nonessential experimental status (USFWS 1991, 1994, and 1996). We believe Congressional intent was to ensure that our partners could rely upon the original rules promulgated for the reintroduction effort. We also contend that retracting the nonessential experimental designation following implementation of this 10(j) rule would be extremely detrimental to ferrets in Wyoming and the partnerships that sustain them. Furthermore, such an alteration of the regulatory framework post-reintroduction would undermine future reintroduction efforts.
Typically, endangered species recovery efforts, including those for ferrets, depend on a myriad of partners working together to accomplish a common goal. In most cases, and particularly for ferrets, recovery would not be possible without substantial partner efforts. In looking back on ferret recovery over the last 25 years, we have gone from no ferret populations known in the wild to having 24 ferret reintroduction sites in the wild, with 17 of those sites continuing to have ferrets through 2015. Hundreds of partners have made this possible. We believe these are not trivial accomplishments. At nearly all the 24 ferret reintroduction sites, it is our partners who accomplish the actual on-the-ground ferret reintroduction and management work. The same will be true in this case, with WGFD taking the lead on implementation of reintroductions. Absent those partnerships, there would be far fewer reintroductions and likely no ferrets in Wyoming. Accordingly, the Service highly values those local partnerships that accomplish ferret recovery and is understandably cautious about undertaking actions that disrupt those partnerships.
In 2009, the Service received a petition to reclassify three reintroduced black-footed ferret populations from nonessential experimental to endangered, including the Shirley Basin NEP in Wyoming. This petition was submitted pursuant to section 553 of the Administrative Procedure Act (5 U.S.C. 553) (WildEarth Guardians
As mentioned above, we do not foresee the need to change the NEP designation for any wild black-footed ferret population. The captive population is crucial to survival of the species in the wild at this time, and likely for the foreseeable future. However, a substantial loss of the captive population is highly improbable, as captive ferrets have been purposefully dispersed among six facilities, protecting the species from a single catastrophic event. In any circumstance, any change in the 10(j) listing would require a new proposed rule, a public comment period (including, if requested, public hearings), public meetings, NEPA compliance, and other documentation prior to publication of a final rule to change or abandon the NEP designation.
(17)
“We will not include a reevaluation of the “nonessential experimental” designation for these populations during our review of the initial five year reintroduction program. We do not foresee any likely situation justifying alteration of the nonessential experimental status of these populations. Should any such alteration prove necessary and it results in a substantial modification to black-footed ferret management on non-Federal lands, any private landowner who consented to the introduction of black footed ferrets on their lands may rescind their consent, and at their request, we will relocate the ferrets pursuant to paragraph (g)(4)(iii) of this section.”
(18)
(19)
(20)
It is important to note, however, that in the case of black-footed ferret reintroductions, aerial surveys are used only as a rough guide for identifying potential black-footed ferret habitat for reintroductions. Measurable fluctuations in prairie dog occupancy are a part of the natural dynamics of prairie dog populations, but fluctuations can be especially pronounced in areas experiencing plague or subjected to poisoning. The presence of unoccupied burrows conclusively indicates that prairie dogs occupied the area sometime in the recent past. Thus, while we may use aerial surveys as rough estimate of prairie dog habitat, we do not rely on aerial surveys to identify areas with the highest biological potential for black-footed ferret reintroductions. Reintroduction sites are chosen instead based on a number of other factors including the size, density, health, and overall stability of the prairie dog occupied habitat, information that is gathered from ground surveys and local knowledge of prairie dog colonies in a given area.
States are encouraged to contribute to recovery goals in proportion to the amount of historical ferret habitat (
(21)
(22)
In our proposed rule, the language under paragraph (g)(9)(viii) stated that “Any black-footed ferret found within the Wyoming Experimental Population Area will be considered part of the nonessential experimental population after the first breeding season following the first year of black-footed ferret release. A black-footed ferret occurring outside of the State of Wyoming would initially be considered as endangered, but may be captured for genetic testing.”
As noted by one reviewer, this language was included in earlier 10(j) rules at a time when the discovery of other extant wild ferret populations was still considered plausible. There have been no verified reports of any extant black-footed ferret individuals or populations in any prairie dog complex since the discovery of the last known wild black-footed ferret population near Meeteetse, Wyoming, in 1981. Recently, the Service issued a `block clearance' letter for the ferret in the State of Wyoming (Service 2013c). Block clearance provides an acknowledgement that the likelihood of identifying ferrets in Wyoming, outside of those resulting from reintroductions, is distinctly minimal. Our revision of paragraph (g)(9)(viii) reflects this determination. Thus, once this 10(j) rule becomes effective, any black-footed ferret found within the Wyoming NEP Experimental Population Area will be considered part of the nonessential experimental population. A black-footed ferret that disperses beyond the boundaries of the nonessential experimental population takes on the status of that area (endangered, unless within another nonessential experimental population area).
We followed the procedures required by the Act, NEPA, and the Administrative Procedure Act during this Federal rulemaking process. We solicited public comment on the proposed NEP designation. We have considered all comments we received on the proposed rule and the draft EA before making this final determination. Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that establishing this Wyoming NEP area will further conservation of the species, but that any future experimental populations of black-footed ferrets in Wyoming would not be essential to the continued existence of the species in the wild.
Therefore, we are finalizing our proposal to designate most of Wyoming (the remainder of the State of Wyoming not covered under past NEPs) as an NEP area under section 10(j) of Act. The result of this designation and the two previous designations is that all black-footed ferrets found within the entire State of Wyoming are considered as an NEP. Black-footed ferrets will be managed under the associated NEP regulations, allowing greater management flexibility. We anticipate this will encourage partners to undertake new reintroductions, advancing the conservation and recovery of the species.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
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. 801
The area that will be affected by this rule includes release sites in Wyoming and adjacent areas in Wyoming into which black-footed ferrets may disperse. Because of the regulatory flexibility for Federal agency actions provided by the NEP designation and the exemption for incidental take in the 10(j) rule, we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the NEP. When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. However, because the NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the black-footed ferret populations within the NEP area. Furthermore, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP area. As a result, and in accordance with these regulations, some modifications to proposed Federal actions within the NEP area may occur to benefit the black-footed ferret, but we do not expect projects to be halted or substantially modified as a result of these regulations.
This 10(j) rule will broadly authorize incidental take of the black-footed ferret within the NEP area. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as, agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP area that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be permitted. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.
The principal activities on private property in the NEP area are livestock grazing and associated ranch management practices (
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(1) This rule will not “significantly or uniquely” affect small governments. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502
(2) This rule will not produce a Federal mandate of $100 million or greater in any year (
In accordance with Executive Order 12630, this final rule does not have significant takings implications. This rule allows for the take of reintroduced black-footed ferret when such take is incidental to an otherwise legal activity, such as recreation (
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 any economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate public interest (conservation and recovery of a listed species) and will not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132 (70 FR 23775), we have considered whether this final rule has significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule will not have substantial direct effects on the states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this final rule with the affected resource agencies in Wyoming. Achieving the recovery goals for this species will contribute to its eventual delisting and return to state management. No intrusion on state policy or administration is expected, roles or responsibilities of Federal or State governments will not change, and fiscal capacity will not be substantially directly affected. The final 10(j) rule operates to maintain the existing relationship between the State and the Federal governments and is being undertaken in coordination with the State of Wyoming. We have cooperated with WGFD in the preparation of this final rule. Therefore, this final rule does not have significant Federalism effects or implications to warrant the preparation of a federalism summary impact statement pursuant to the provisions of Executive Order 13132.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections (3)(a) and (3)(b)(2) of the Order.
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 229511), Executive Order 13175 (65 FR 67249), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian Tribes and have determined that Tribal lands overlap the Wyoming NEP in portions of Fremont and Hot Springs Counties. However, participation in black-footed ferret recovery is entirely voluntary. If suitable habitat for ferret recovery is available, non-Federal landowners, including Tribes, may choose to either not participate, or to participate through authorities under 10(j), 10(a)(1)(A), or the Safe Harbor Agreement (USFWS 2013b). If ferrets were reintroduced on non-tribal lands adjacent to Tribal lands and subsequently dispersed onto Tribal lands, the aforementioned authorities will provide a more relaxed regulatory situation under the Act through allowances for incidental take. However, as stated previously, we are not aware of any prairie dog complexes suitable for ferret reintroduction on or adjacent to Tribal lands. The nearest potential reintroduction sites are two white-tailed prairie dog complexes—Fifteen-mile Complex near Worland in Hot Springs County, and Sweetwater Complex near Sweetwater Station in Fremont County (Luce 2008, pp. 29–30). Both sites are of intermediate potential for ferret reintroduction and are located approximately 19 miles (30 kilometers) from reservation boundaries. We sent letters, describing our proposed action and requesting input, to the Northern Arapaho and Eastern Shoshone Tribes of the Wind River Reservation on September 4, 2014. We did not receive a response from either Tribe.
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
A complete list of all references cited in this rule is available on the Internet at
The authors of this final rule are staff members of the Wyoming Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
(h) * * *
The revisions and additions read as follows:
(g) * * *
(1) The black-footed ferret populations identified in paragraphs (g)(9)(i) through (viii) of this section are nonessential experimental populations. We will manage each of these populations, and each reintroduction site within the Wyoming Experimental Population Area, in accordance with their respective management plans.
(6) * * *
(i) Report such taking in Wyoming, including the Shirley Basin/Medicine Bow experimental population area, to the Field Supervisor, Ecological Services, Fish and Wildlife Service, Cheyenne, Wyoming (telephone: 307/772–2374).
(9) * * *
(viii) The Wyoming Experimental Population Area encompasses most of the State of Wyoming. The boundaries of the nonessential experimental population include all areas in the State of Wyoming outside of the Shirley Basin/Medicine Bow Management Area (see paragraph (g)(9)(i) of this section) and the small portion of Wyoming included as part of the Northwestern Colorado/Northeastern Utah Experimental Population Area (see paragraph (g)(9)(v) of this section). Collectively, however, these three 10(j) areas cover the entire State of Wyoming. Any black-footed ferret found within the Wyoming NEP Experimental Population Area will be considered part of a nonessential experimental population. A black-footed ferret that disperses beyond the boundaries of the nonessential experimental population area takes on the status of that area (endangered, unless within another nonessential experimental population area). Such animals may be captured for genetic testing and relocation. If necessary, disposition of the captured animal may occur in the following ways:
(A) If an animal is genetically determined to have originated from the experimental population, we may return it to the reintroduction area or to a captive-breeding facility.
(B) If an animal is determined to be genetically unrelated to the experimental population, we will place it in captivity under an existing contingency plan.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is exchanging unused Community Development Quota (CDQ) for CDQ acceptable biological catch (ABC) reserves. This action is necessary to allow the 2015 total allowable catch of rock sole and yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.
Effective October 30, 2015 through December 31, 2015.
Steve Whitney, 907–586–7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2015 rock sole and yellowfin sole CDQ reserves specified in the BSAI are 6,875 metric tons (mt) and 17,321 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 65663, October 27, 2015). The 2015 rock sole, and yellowfin sole CDQ ABC reserves are 12,567 mt and 9,301 mt as established by the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 65663, October 27, 2015).
The Bristol Bay Economic Development Corporation has requested that NMFS exchange 600 mt of rock sole CDQ reserves for 600 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 600 mt of rock sole CDQ reserves for 600 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2015 and 2016 harvest specifications for groundfish in the BSAI (80 FR 11919, March 5, 2015) and following revisions (80 FR 65663, October 27, 2015) are further revised as follows:
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Bristol Bay Economic Development Corporation in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 20, 2015.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 767 airplanes. This proposed AD was prompted by a determination that certain splice plate locations of the aft pressure bulkhead web are hidden and cannot be inspected using existing manufacturer service information. This proposed AD would require repetitive open-hole high frequency eddy current (HFEC) inspections for cracking of the aft pressure bulkhead web. We are issuing this AD to detect and correct cracking in the aft pressure bulkhead web, which could result in rapid decompression and loss of structural integrity.
We must receive comments on this proposed AD by December 14, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6447; fax: 425–917–6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have determined that certain splice plate locations of the aft pressure bulkhead web at station (STA) 1582 are hidden and cannot be inspected visually for cracking because they are hidden due to the installation of splice plates up to 5 inches in width. These locations cannot be inspected using existing manufacturer service information; therefore, fastener removal and repetitive open-hole HFEC inspections for cracking of the aft pressure bulkhead web at STA 1582 are needed. We are issuing this AD to detect and correct cracking in the aft pressure bulkhead web at STA 1582, which, if not found and repaired, could result in rapid decompression and loss of structural integrity.
We reviewed Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015. The service information describes procedures for removing the aft row of fasteners from each of the splice plates and doing an open-hole HFEC inspection for cracking in the aft pressure bulkhead at STA 1582. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information identified previously, except as discussed under “Differences Between this Proposed AD and the Service Information.”
For information on the procedures and compliance times, see this service
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as required for compliance (RC) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.
For service information that contains steps that are labeled as RC, the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an alternative method of compliance (AMOC) is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 430 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 14, 2015.
None.
This AD applies to all The Boeing Company Model 767–200, –300, –300F, and –400ER series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a determination that areas at certain splice plate locations of the aft pressure bulkhead web are hidden and cannot be inspected using existing manufacturer service information; therefore, an inspection for cracking of the aft pressure bulkhead web at station (STA) 1582 is needed. We are issuing this AD to detect and correct cracking in the aft pressure bulkhead web, which could result in rapid decompression and loss of structural integrity.
Comply with this AD within the compliance times specified, unless already done.
At the applicable times specified in Table 1 and Table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, except as required by paragraph (i) of this AD: Do an open-hole high frequency eddy current (HFEC) inspection for cracking in the aft pressure bulkhead web at STA 1582, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, except as required by paragraph (h) of this AD. Do all applicable corrective actions before further flight. Repeat the inspections thereafter at intervals not to exceed 12,000 flight cycles.
If any crack is found during any inspection required by this AD, and Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, specifies to contact Boeing for repair instructions: Before further flight, repair the crack in accordance with the procedures specified in paragraph (j) of this AD. Accomplishing a repair terminates the inspections required by paragraph (g) of this AD in the area under the repair only.
Where Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified time after the effective date of this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6447; fax: 425–917–6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
Social Security Administration.
Advance notice of proposed rulemaking; extension of the comment period.
On September 14, 2015, we published in the
The comment period for the advanced notice of proposed rulemaking published on September 14, 2015 (80 FR 55050), is extended. To ensure that your written comments are considered, we must receive them on or before December 14, 2015.
You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA–SSA–2014–0081 so that we may associate your comments with the correct regulation.
1.
2.
3.
Comments are available for public viewing on the Federal eRulemaking portal at
Mary Quatroche, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 966–4794. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
This document extends the comment period to Monday, December 14, 2015, for the advanced notice of proposed rulemaking that we published on September 14, 2015. We are extending the comment period in light of the comments we anticipate receiving from our National Disability Forum occurring on November 20, 2015, which includes a panel discussion on the topic of our vocational factors. If you have already provided comments on the proposed rules, we will consider your comments and you do not need to resubmit them.
Food and Drug Administration, HHS.
Notification; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the draft document entitled “Minimal Manipulation of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and Food and Drug Administration Staff,” published in the
Submit either electronic or written comments on the draft guidance by April 29, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Lori J. Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
In the
Elsewhere in this issue of the
In a separate document, FDA is announcing the availability of a draft document entitled “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and FDA Staff.”
In separate documents, FDA is also reopening the comment periods to FDA's public dockets on the previously issued draft guidance documents on the following topics related to HCT/Ps: Adipose tissue (Docket No. FDA–2014–D–1856) and same surgical procedure exception (Docket No. FDA–2014–D–1584).
Following publication of December 23, 2014, notice of availability, FDA received a request to allow interested persons additional time to comment. In conjunction with the part 15 hearing and announcement of availability of the homologous use draft guidance, FDA is reopening the comment period to allow potential respondents to thoroughly evaluate and address pertinent issues. The minimal manipulation draft guidance and other related guidances (homologous use, same surgical procedure exception, adipose tissue) all deal with the interpretation of the regulations under 21 CFR part 1271 that will be addressed as part of the part 15 hearing.
Food and Drug Administration, HHS.
Notification of public hearing; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing a 1-day public hearing to obtain input on four recently issued draft guidances relating to the regulation of human cells, tissues, or cellular or tissue-based products (HCT/Ps). These draft guidances were issued by FDA in response to stakeholders' requests for guidance on FDA's current views about how manufacturers, establishments, and distributors of HCT/Ps and health care professionals can meet the criteria under the Agency's regulations that apply to HCT/Ps. FDA will consider information it obtains from the public hearing in the finalization of these guidances.
The public hearing will be held on April 13, 2016, from 8 a.m. to 5 p.m. The meeting may be extended or end early depending on the level of public participation. Persons seeking to attend or to present at the public hearing must register by January 8, 2016. Section IV provides attendance and registration information. Electronic or written comments will be accepted after the public hearing until April 29, 2016.
The public hearing will be held at FDA's White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993. Entrance for the public hearing participants (non-FDA employees) is through Building 1, where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
A link to the live Webcast of this public hearing will be available at
Lori Jo Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240–402–7911,
HCT/Ps are defined in § 1271.3(d) (21 CFR 1271.3(d)) as articles containing or consisting of human cells or tissues that are intended for implantation, transplantation, infusion, or transfer into a human recipient. FDA has implemented a risk-based approach to the regulation of HCT/Ps. Under the authority of section 361 of the Public Health Service (PHS) Act (42 U.S.C. 264), FDA established regulations for all HCT/Ps to prevent the introduction, transmission, and spread of communicable diseases. These regulations can be found in part 1271. An HCT/P is regulated solely under section 361 of the PHS Act and part 1271, if it meets all of the following criteria (§ 1271.10(a)):
• The HCT/P is minimally manipulated;
• The HCT/P is intended for homologous use only, as reflected by the labeling, advertising, or other indications of the manufacturer's objective intent;
• The manufacture of the HCT/P does not involve the combination of the cells or tissues with another article, except for water, crystalloids, or a sterilizing, preserving, or storage agent, provided that the addition of water, crystalloids, or the sterilizing, preserving, or storage does not raise new clinical safety concerns with respect to the HCT/P; and
• Either
○ The HCT/P does not have a systemic effect and is not dependent upon the metabolic activity of living cells for its primary function, or
○ The HCT/P has a systemic effect or is dependent upon the metabolic activity of living cells for its primary function, and is for the following uses:
Autologous,
Allogeneic, in a first-degree or second-degree blood relative, or
Reproductive.
If an HCT/P does not meet all of the criteria set forth under § 1271.10(a), the HCT/P will be regulated as a drug, device, and/or biological product under the Federal Food, Drug, and Cosmetic Act, and/or section 351 of the PHS Act (42 U.S.C. 262).
In certain circumstances as provided in § 1271.15, an establishment that manufactures HCT/Ps may be excepted from the requirements in part 1271. For example, an establishment is excepted from the requirements if it “removes HCT/Ps from an individual and implants such HCT/Ps into the same individual during the same surgical procedure” (§ 1271.15(b)).
As part of its commitment to public outreach and to explain the Agency's current thinking on the regulatory framework for HCT/Ps, FDA has issued the following four draft guidances:
• Same Surgical Procedure Exception under § 1271.15(b): Questions and Answers Regarding the Scope of the Exception; Draft Guidance for Industry (Same Surgical Procedure Exception Draft Guidance);
• Minimal Manipulation of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and Food and Drug Administration Staff (Minimal Manipulation Draft Guidance);
• Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) from Adipose Tissue: Regulatory Considerations; Draft Guidance for Industry (Adipose Tissue Draft Guidance); and
• Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and Food and Drug Administration Staff (Homologous Use Draft Guidance).
The Same Surgical Procedure Exception Draft Guidance was published in the
The Minimal Manipulation Draft Guidance was published in the 03'
The Adipose Tissue Draft Guidance was published in the
Elsewhere in this issue of the
The purpose of this public hearing is to obtain comments on these four draft guidances. FDA is seeking feedback, both general and specific, from a broad group of stakeholders, including HCT/P manufacturers, tissue establishments, biological and device product manufacturers, health care professionals, clinicians, biomedical researchers, and the public. For example, FDA would like comments on the scope of each guidance, including the particular topics covered, the particular questions posed, whether there are additional issues for which they seek guidance, and whether FDA's recommendations for each topic are sufficiently clear and consistent within and across documents to provide meaningful guidance to stakeholders. In addition, FDA welcomes any comments that will enhance the usefulness and clarity of these documents.
FDA recommends that comments exclude discussion of products which do not meet the definition of an HCT/P, such as platelet rich plasma. FDA also recommends that stakeholders coordinate comments when possible in order to allow for presentation of a wide range of perspectives within the allotted time of the meeting.
The FDA Conference Center at the White Oak location is a Federal facility with security procedures and limited seating. Attendance is free and will be on a first-come, first-served basis. Individuals who wish to present at the public hearing must register by sending an email to
If you need special accommodations because of a disability, please contact Sherri Revell or Loni Warren Henderson at 240–402–7800 at least 7 days before the meeting.
A link to the live Web cast of this public hearing will be available at
The Commissioner of Food and Drugs is announcing that the public hearing will be held in accordance with part 15 (21 CFR part 15). The hearing will be conducted by a presiding officer, accompanied by FDA senior management from the Office of the Commissioner and the Center for Biologics Evaluation and Research.
Under § 15.30(f), the hearing is informal and the rules of evidence do not apply. No participant may interrupt the presentation of another participant. Only the presiding officer and panel members may question any person during or at the conclusion of each presentation. Public hearings under part 15 are subject to FDA's policy and procedures for electronic media coverage of FDA's public administrative proceedings (21 CFR part 10, subpart C). Under 21 CFR 10.205, representatives of the electronic media may be permitted, subject to certain limitations, to videotape, film or otherwise record FDA's public administrative proceedings, including presentations by participants. The hearing will be transcribed as stipulated in § 15.30(b) (see section VI). To the extent that the conditions for the hearing, as described in this document, conflict with any provisions set out in part 15, this document acts as a waiver of those provisions as specified in § 15.30(h).
Please be advised that as soon as a transcript is available, it will be accessible at
Food and Drug Administration, HHS.
Notification; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the draft document entitled “Same Surgical Procedure Exception: Questions and Answers Regarding the Scope of the Exception; Draft Guidance for Industry” announced in the
Submit either electronic or written comments on the draft guidance by April 29, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• M
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions”.
•
Lori J. Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
In the
Elsewhere in this issue of the
In a separate document, FDA is announcing the availability of a draft document entitled “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and FDA Staff.”
In separate documents, FDA is also reopening the comment periods to FDA's public dockets on the previously issued draft guidance documents on the following topics related to HCT/Ps: Minimal manipulation (Docket No. FDA–2014–D–1696) and adipose tissue (Docket No. FDA–2014–D–1856).
Following publication of the October 23, 2014, notice of availability, FDA received a request to allow interested persons additional time to comment. In conjunction with the part 15 hearing and announcement of availability of the homologous use draft guidance, FDA is reopening the comment period to allow potential respondents to thoroughly evaluate and address pertinent issues. The same surgical procedure exception draft guidance and other related guidances (homologous use, minimal manipulation, adipose tissue) all deal with the interpretation of the regulations under 21 CFR part 1271 that will be addressed as part of the part 15 hearing.
Food and Drug Administration, HHS.
Notification; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the draft document entitled “Human Cells, Tissues, and Cellular and Tissue-Based Products from Adipose Tissue: Regulatory Considerations; Draft Guidance for Industry” published in the
Submit either electronic or written comments on the draft guidance by April 29, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Lori J. Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
In the
Elsewhere in this issue of the
In a separate document, FDA is announcing the availability of a draft document entitled “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and FDA Staff.”
In separate documents, FDA is also reopening the comment periods to
Following publication of December 24, 2014, notice of availability, FDA received several requests to allow interested persons additional time to comment. In conjunction with the part 15 hearing and announcement of availability of the homologous use draft guidance, FDA is reopening the comment period to allow potential respondents to thoroughly evaluate and address pertinent issues. The adipose tissue draft guidance and other related guidances (homologous use, minimal manipulation, same surgical procedure exception) all deal with the interpretation of the regulations under 21 CFR part 1271 that will be addressed as part of the part 15 hearing.
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft document entitled “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and FDA Staff.” The draft guidance document provides human cells, tissues, and cellular and tissue-based product (HCT/P) manufacturers, health care providers, and FDA staff, with recommendations for applying the criterion of “homologous use” as it applies to HCT/Ps. The interpretation and application of the homologous use criterion and related definitions have been of considerable interest to industry stakeholders since they were first proposed during the Agency's rulemaking on HCT/Ps.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 29, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Submit written requests for single copies of the draft guidance to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993–0002, or to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66,
Lori Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911; or Angela Krueger, Office of Device Evaluation, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1666, Silver Spring, MD 20993–0002, 301–796–6380; or Leigh Hayes, Office of Combination Products, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5125, Silver Spring, MD 20993–0002, 301–796–8938.
FDA is announcing the availability of a draft document entitled “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products; Draft Guidance for Industry and FDA Staff.” The draft guidance document provides HCT/P manufacturers, health care providers, and FDA staff, with recommendations for applying the § 1271.10(a)(2) (21 CFR 1271.10(a)(2)) criterion of homologous use. This guidance will improve stakeholders' understanding of the definition of homologous use in § 1271.3(c), and how to apply the regulatory criterion in § 1271.10(a)(2) to their HCT/P.
HCT/Ps are defined in § 1271.3(d) as articles containing or consisting of human cells or tissues that are intended for implantation, transplantation, infusion, or transfer into a human recipient. FDA has implemented a risk-based approach to the regulation of HCT/Ps. Under the authority of section 361 of the Public Health Service (PHS) Act (42 U.S.C. 264), FDA established regulations under part 1271 for all HCT/Ps to prevent the introduction, transmission, and spread of communicable diseases. HCT/Ps are regulated solely under section 361 of the PHS Act and 21 CFR part 1271, if they meet the criteria provided under § 1271.10(a).
If an HCT/P does not meet all of the criteria set out under § 1271.10(a), and does not meet one of the exceptions in § 1271.15, the HCT/P will be regulated as a drug, device, and/or biological product under the Federal Food, Drug, and Cosmetic Act, and/or section 351 of the PHS Act (42 U.S.C. 262).
The draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent FDA's current thinking on “Homologous Use of Human Cells, Tissues, and Cellular and Tissue-Based Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirement of the applicable statutes and regulations.
In a separate document published elsewhere in this issue of the
In separate documents published elsewhere in this issue of the
The draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in part 1271 have been approved under OMB control number 0910–0543.
Persons with access to the Internet may obtain the draft guidance at either
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by January 28, 2016.
Send submissions to: CC:PA:LPD:PR (REG–121496–15), Room 5203, 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–121496–15), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224 or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Hollie M. Marx at (202) 317–6844; concerning cost methodology, Eva J. Williams at (202) 803–9728; concerning submission of comments and/or requests for a public hearing, Oluwafunmilayo Taylor, (202) 317–6901 (not toll-free numbers).
Temporary regulations in the Rules and Regulations section of this issue of 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.
It has been determined that an initial regulatory flexibility analysis is required for this notice of proposed rulemaking under 5 U.S.C. 603. This analysis is set forth under the heading “Initial Regulatory Flexibility Analysis.”
Pursuant to section 7805(f), 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.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (5 U.S.C. chapter 6) (RFA) requires the agency “to prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities.” See 5 U.S.C. 603(a). Section 605 of the RFA provides an exception to this requirement if the agency certifies that the proposed rulemaking will not have a significant economic impact on a substantial number of small entities. A small entity is defined as a small business, small nonprofit organization, or small governmental jurisdiction. See 5 U.S.C. 601(3) through (6). The IRS and the Treasury Department conclude that the proposed rule, if promulgated, may have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is required.
The IRS and the Treasury Department implemented regulatory changes in 2010 that required any individual who prepares or who assists in preparing all or substantially all of a tax return or claim for refund for compensation to obtain a PTIN. Pursuant to the PTIN regulations, only those individuals who apply for and maintain a current PTIN may prepare tax returns and claims for refund for compensation. Because the ability to prepare tax returns and claims for refund for compensation is limited to individuals who have a PTIN, the provision of a PTIN confers a special benefit. The IRS incurs costs associated with processing a PTIN application and providing the special benefit associated with the PTIN. The IRS and Treasury Department initially determined that the full cost of providing the special benefit conferred by a PTIN was $50 for each original application and each annual renewal. In accordance with OMB Circular A–25, the IRS and Treasury conducted a biennial review of the PTIN user fee amount in 2015 and determined that the full cost of providing the special benefit conferred by a PTIN had been reduced to $33 for each original application and each annual renewal.
The objective of the proposed regulations is to recover the costs to the government associated with providing the special benefit that an individual receives upon applying for or renewing a PTIN. These costs include activities, processes, and procedures related to the electronic and paper registration and renewal submissions; tax compliance and background checks; professional designation checks; foreign preparer processing; compliance and complaint activities; information technology and contract-related expenses; and communications. The PTIN user fee also takes into account various indirect program costs, including management and support costs. OMB Circular A–25 encourages user fees when special benefits are conferred on identifiable recipients. Individuals who obtain a PTIN receive the ability to prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation. The ability to prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation is a special benefit.
The legal basis for the PTIN user fee is contained in section 9701 of title 31.
The proposed regulations affect all individuals who prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation. Only individuals, not businesses, can apply for or renew a PTIN. Thus, the economic impact of these regulations on any small entity generally will be a result of an individual tax return preparer who is required to apply for or renew a PTIN owning a small business or a small business otherwise employing an individual tax return preparer who is required to apply for or renew a PTIN.
The appropriate NAICS codes for PTINs are those that relate to tax preparation services (NAICS code 541213), offices of certified public accountants (NAICS code 541211), other accounting services (NAICS code 541219), and offices of lawyers (NAICS code 541110). Entities identified as tax preparation services, offices of certified public accountants, and other accounting services are considered small under the Small Business Administration size standards (13 CFR 121.201) if their annual revenue is less than $20.5 million. Entities identified as offices of lawyers are considered small under the Small Business Administration size standards if their annual revenue is less than $11 million. The IRS estimates that approximately 70 to 80 percent of the individuals subject to these proposed regulations are tax return preparers operating as or employed by small entities.
No reporting or recordkeeping requirements are projected to be associated with this proposed regulation.
The IRS is not aware of any Federal rules that duplicate, overlap, or conflict with the proposed rule.
The IOAA authorizes the charging of user fees for agency services, subject to policies designated by the President. OMB Circular A–25 implements presidential policies regarding user fees and encourages user fees when a government agency provides a special benefit to a member of the public. In the IOAA, Congress has stated a preference that special benefits be self-sustaining.
A PTIN is required for an individual to prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation. PTINs are used by the IRS to collect and track data on tax return preparers. This data allows the IRS to track the number of persons who prepare or assist in preparing returns and claims for refund, the qualifications of those persons who prepare or assist in preparing returns and claims for refund, the number of returns each person prepares, and, when instances of misconduct or potential misconduct are detected, locate and review returns and claims for refund prepared by a specific tax return preparer. PTINs must be renewed annually to ensure that the identifying information associated with a PTIN is current.
Due to the costs to the government to process the application for a PTIN, the requirement to include a PTIN on tax returns and claims for refund, and the expressed preference in the IOAA that special benefits be self-sustaining, there is no viable alternative to imposing a user fee.
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. The IRS and Treasury Department request comments on all aspects of these proposed regulations. All comments that are submitted by the public will be made available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal author of these regulations is Hollie M. Marx, Office of the Associate Chief Counsel (Procedure and Administration).
Reporting and recordkeeping requirements, User fees.
Accordingly, 26 CFR part 300 is proposed to be amended as follows:
31 U.S.C. 9701.
Equal Employment Opportunity Commission.
Proposed rule.
The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is issuing a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 as they relate to employer wellness programs. The proposed regulations address the extent to which an employer may offer an employee inducements for the employee's spouse who is also a participant in the employer's health plan to provide information about the spouse's current or past health status as part of a health risk assessment administered in connection with the employer's offer of health services as part of an employer-sponsored wellness program. Several technical changes to the existing regulation are also proposed.
Comments regarding this proposal must be received by the Commission on or before December 29, 2015. Please see the section below entitled
You may submit comments, identified by
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Christopher J. Kuczynski, Assistant Legal Counsel, at (202) 663–4665 (voice), or Kerry E. Leibig, Senior Attorney Advisor, at (202) 663–4516 (voice), or (202) 663–7026 (TTY). Requests for this notice in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 663–4191 (voice) or (202) 663–4494 (TTY).
Congress enacted Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), codified at 42 U.S.C. 2000ff
Congress enacted GINA to address concerns prevalent at the time that individuals would not take advantage of the increasing number of genetic tests that could inform them as to whether they were at risk of developing specific diseases or disorders due to fear that genetic information would be used to deny health coverage or employment.
Title II of GINA prohibits the use of genetic information in employment; restricts employers and other entities covered by GINA
Although similar to Title I of the Americans with Disabilities Act (ADA) in that both laws are concerned with limiting the use, acquisition, and disclosure of medical information in the employment setting, GINA, consistent with Congressional concern about the uniquely personal nature of genetic information, provides unique protections. Unlike the ADA, which allows employers to consider medical information in certain limited circumstances (such as using information from a post-offer medical examination to determine an applicant's current ability to perform a job), GINA prohibits employers from using genetic information in employment decisions in all circumstances, with no exceptions.
There are only six very limited circumstances in which an employer
Although the EEOC received no comments prior to the publication of the Title II final rule in 2010 regarding how GINA's restriction on employers' acquiring genetic information interacts with the practice of offering employees inducements where a spouse participates in a wellness program, this question has arisen since publication of the final rule. The EEOC has received numerous inquiries about whether an employer will violate GINA and, in particular, 29 CFR 1635.8(b)(2), by offering an employee an inducement if the employee's spouse who is covered under the employer's group health plan
Read in one way, conditioning all or part of an inducement on the provision of the spouse's current or past health information could be read to violate the 29 CFR 1635.8(b)(2)(ii) prohibition on providing financial inducements in return for an employee's protected genetic information. When an employer seeks information from a spouse (who is a “family member” under GINA as set forth at 29 CFR 1635.3(a)(1)) about his or her current or past health status, the employer is also treated under GINA as requesting genetic information about the employee. This is because GINA defines the term “genetic information” of an employee broadly to include information about a family member's (including a spouse's) current or past health status.
The proposed regulations would clarify that GINA does not prohibit employers from offering limited inducements (whether in the form of rewards or penalties avoided
The ADA does not have the same statutory requirement for authorization as is in GINA. In light of this statutory difference, the NPRM on the ADA and wellness programs published by the Commission on April 20, 2015 would require a notice to employees in connection with such a HRA where a wellness program is part of a group health plan. The notice must clearly explain what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
The Commission further proposes to add to the existing 1635.8(b)(2) requirements a requirement that any health or genetic services in connection with which an employer requests genetic information be reasonably designed to promote health or prevent disease. This addition will make the revised GINA regulations consistent with the proposed rule amending the ADA's regulations as they relate to wellness programs, which permits employers to collect medical information as part of a wellness program only if the program and the disability-related inquiries and medical examinations that are part of the program are reasonably designed to promote health or prevent disease.
These regulations further propose that inducements in exchange for current or past health status information about an employee's children (biological and non-biological
Furthermore, while the proposal allows inducements in return for a spouse's current and past health status, it does not allow inducements in return for the spouse providing his or her own genetic information, including the results of his or her genetic tests. Limiting inducements in this way not only promotes consistency with Title I of GINA, which prohibits inducements in return for the genetic information of a spouse who is a plan participant, but also ensures that the exception to the prohibition on inducements in return for genetic information is drawn narrowly.
This proposal would not alter the absolute prohibition against the use of genetic information in making employment decisions. Were an employer to use information about a spouse's current or past health status to make an employment decision about an employee, it would violate GINA's prohibition on using genetic information.
The revisions also prohibit conditioning participation in a wellness program or any inducement on an individual, or an individual's spouse or family member, waiving GINA's confidentiality provisions.
The EEOC proposes to make six substantive changes to its GINA regulations. First, we propose to add a new subsection to 29 CFR 1635.8(b)(2), to be numbered 1635.8(b)(2)(i)(A). It would explain that employers may request, require, or purchase genetic information as part of health or genetic services only when those services, including any acquisition of genetic information that is part of those services, are reasonably designed to promote health or prevent disease. In order to meet this standard, the program must have a reasonable chance of improving the health of, or preventing disease in, participating individuals, and must not be overly burdensome, a subterfuge for violating Title II of GINA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. Collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease. Additionally, a program is not reasonably designed to promote health or prevent disease if it imposes, as a condition of obtaining a reward, an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations on employees. A program is also not reasonably designed if it exists merely to shift costs from the covered entity to targeted employees based on their health.
Second, we propose to add a subsection to 29 CFR 1635.8(b)(2), to be numbered 1635.8(b)(2)(iii). It would explain that, consistent with the requirements of paragraphs (b)(2)(i) and (b)(2)(ii), a covered entity may offer, as part of its health plan, an inducement to an employee whose spouse (1) is covered under the employee's health plan; (2) receives health or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current or past health status as part of a HRA. No inducement may be offered, however, in return for the spouse providing his or her own genetic information, including results of his or her genetic tests.
The HRA, which may include a medical questionnaire, a medical examination (
The total inducement to the employee and spouse may not exceed 30 percent of the total annual cost of coverage for the plan in which the employee and any dependents are enrolled. The 30 percent limit includes any inducement for a spouse's current or past health status information and any other inducements to the employee, as permitted under Title I of the ADA, for the employee's participation in a wellness program that asks disability-related questions or includes medical examinations. Thus, for example, if an employer offers health insurance coverage at a total cost (taking into account both employer and employee contributions towards the cost of coverage for the benefit package) of $14,000 to cover an employee and the employee's spouse and/or spouse and other dependents, and provides the option of participating in a wellness program to the employee and spouse covered by the plan, it may not offer a total inducement greater than 30 percent of $14,000, or $4,200.
This type of inducement limit generally parallels the limitations set forth in section 1201 of the Affordable Care Act,
Third, in addition to limiting the total inducement to 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled, the proposed rule, at new section 1635.8(b)(2)(iv), describes the manner in which inducements for employees and spouses are to be apportioned. The EEOC proposes that the maximum share of the inducement attributable to the employee's participation in an employer wellness program (or multiple employer wellness programs that request such information) be equal to 30 percent of the cost of self-only coverage, which is the maximum amount the Commission has proposed may be offered under the ADA for an employee to answer disability-related inquiries or take medical examinations in connection with a wellness program that is part of a group health plan.
Thus, for example, if an employee is enrolled in a health plan that covers the employee and any class of dependents for which the total cost of coverage is $14,000, the maximum inducement the employer can offer for the employee and the employee's spouse to provide information about their current or past health status is 30 percent of $14,000, or $4,200. If the employer's self-only coverage costs $6,000, the maximum allowable incentive the employer may offer for the employee's participation is 30 percent of $6,000, or $1,800. The rest of the inducement, $4,200 minus $1,800, or $2,400, may be offered for the spouse to provide current or past health status information. However, an employer would be free to offer all or part of the $2,400 inducement in other ways as well, such as for the employee, the spouse, and/or another of the employee's dependents to undertake activities that would qualify as participatory or health-contingent programs but do not include requests for genetic information, disability-related inquiries, or medical examinations. Thus, in the example above, an employer could offer $1,800 for the employee to answer disability-related questions and/or to take medical examinations as part of a health risk assessment, could offer the same amount for the employee's spouse to answer the same questions and to take the same medical examinations, and could offer the remaining $600 for the employee, the spouse, or both to undertake an activity-based health-contingent program, such as a program that requires participants to walk a certain amount each week. Additionally, a wellness program may offer inducements in accordance with HIPAA and the Affordable Care Act without regard to the limits on apportionment set forth in this proposed rule if neither the employee nor the employee's spouse are required to provide current or past health status information, so long as the wellness program otherwise complies with the requirements of the ADA and GINA.
Fourth, proposed section 1635.8(b)(2)(vi) would prohibit a covered entity from conditioning participation in a wellness program or an inducement on an employee, or the employee's spouse or other covered dependent, agreeing to the sale of genetic information or waiving protections provided under section 1635.9. Section 1635.9 prohibits the disclosure of genetic information, except in six narrowly defined circumstances.
Fifth, we propose to add another example to 29 CFR 1635.8(c)(2) to make clear that an employer is permitted to seek information—through medical questionnaires, medical examinations (
Finally, the revisions would remove the term “financial” as a modifier of the type of inducements discussed in the regulation and make clear that the term “inducements” includes both financial and in-kind inducements, such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties.
These revisions would require renumbering throughout 29 CFR 1635.8(b)(2), as well as the addition of a reference to the new subsections within 29 CFR 1635.8(b)(2)(ii).
The first sentence of 29 CFR 1635.8(b)(2)(iv) (which, in the proposed rule, will be renumbered as 29 CFR 1635.8(b)(2)(vii)) reads as follows: “Nothing in § 1635.8(b)(2)(iii) limits the rights or protections of an individual under the Americans with Disabilities Act (ADA), as amended, or under any other applicable civil rights law, or under the Health Insurance Portability and Accountability Act (HIPAA), as amended by GINA.” This subsection should have referred to subsection (b)(2)(ii) concerning inducements for completing HRAs, as well as subsection (b)(2)(iii) (which, in the proposed rule, will be renumbered as 29 CFR 1635.8(b)(2)(v)) concerning disease management or other programs that offer inducements for achieving certain health outcomes. We propose to revise the rule so that it references the appropriate subsections, including the newly proposed 29 CFR 1635.8(b)(2)(iii) and (iv) concerning inducements for spouses to complete HRAs. Finally, we propose to amend this and other subsections to include reference to HIPAA and the Affordable Care Act, where appropriate.
The Commission invites written comments from members of the public on any issues related to this proposed rule about particular practices that might violate GINA. In addition, the Commission specifically requests comments on several issues:
(1) Whether employers that offer inducements to encourage the spouses of employees to disclose information about current or past health must also offer similar inducements to persons who choose not to disclose such information, but who instead provide certification from a medical professional stating that the spouse is under the care of a physician and that any medical risks identified by that physician are under active treatment.
(2) Should the proposed authorization requirement apply only to wellness programs that offer more than de minimis rewards or penalties to employees whose spouses provide information about current or past health status as part of a HRA? If so, how should the Commission define “de minimis”?
(3) Which best practices or procedural safeguards ensure that employer-sponsored wellness programs are designed to promote health or prevent disease and do not operate to shift costs to employees with spouses who have health impairments or stigmatized conditions?
(4) Given that, in contrast to the status quo when the ADA was enacted, most employers today store personnel information electronically, and in light of increasingly frequent breaches to electronically stored employment records, should the rule include more specific guidance to employers regarding how to implement the requirements of 29 CFR 1635.9(a) for electronically stored records? If so, what procedures are needed to achieve GINA's goal of ensuring the confidentiality of genetic information with respect to electronic records stored by employers?
(5) In addition to any suggestions offered in response to the previous question, are there best practices or procedural safeguards to ensure that information about spouses' current health status is protected from disclosure?
(6) Given concerns about privacy of genetic information, should the regulation restrict the collection of any genetic information by a workplace wellness program to only the minimum necessary to directly support the specific wellness activities, interventions, and advice provided through the program—namely information collected through the program's HRA and biometric screening? Should programs be prohibited from accessing genetic information from other sources, such as patient claims data and medical records data?
(7) Whether employers offer (or are likely to offer in the future) wellness programs outside of a group health plan or group health insurance coverage that use inducements to encourage employees' spouses to provide information about current or past health status as part of a HRA, and the extent to which the GINA regulations should allow inducements provided as part of such programs.
Pursuant to Executive Order 12866, the EEOC has coordinated this proposed rule with the Office of Management and Budget. Under section 3(f)(1) of Executive Order 12866, the EEOC has determined that the proposed regulation will not have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities.
Although a detailed cost-benefit assessment of the proposed regulation is not required, the Commission notes that the rule will aid compliance with Title II of GINA by employers. Currently, employers face uncertainty as to whether providing an employee with an inducement if his or her spouse provides information about the spouse's current or past health status on a HRA will subject them to liability under Title II of GINA. This rule will clarify that offering limited inducements in these circumstances is permitted by Title II of GINA if the requirements of section 202(b)(2)(A) of GINA otherwise have been met. We believe that a potential benefit of this rule is that it will provide employers that adopt wellness programs that include spousal inducements with clarity about their obligations under GINA.
The Commission does not believe the costs to employers associated with the rule are significant. Under HIPAA, as amended by the Affordable Care Act, inducements of up to 30 percent of the total cost of coverage in which an employee is enrolled are permitted where the employee and the employee's dependents are given the opportunity to fully participate in the health-contingent wellness program. This proposed rule simply clarifies that a similar inducement is permissible under Title II of GINA where an employer offers inducements for an employee's spouse enrolled in the group health plan to provide current or past health status information.
The Commission further believes that employers will face initial start-up costs to train human resources staff and others on the revised rule. The EEOC conducts extensive outreach and technical assistance programs, many of them at no cost to employers, to assist in the training of relevant personnel on EEO-related issues. For example, in FY 2013, the agency's outreach programs reached more than 280,000 persons through participation in more than 3,800 no-cost educational, training and outreach events. We expect to put information about the revisions to the GINA regulations in our outreach programs in general and to continue to offer GINA-specific outreach programs which will, of course, include information about the revisions once the proposed rule becomes final. We will also post technical assistance documents on our Web site explaining the revisions to the GINA regulations, as
We estimate that there are approximately 782,000 employers with 15 or more employees subject to Title II of GINA
Finally, GINA's plain language (at 42 U.S.C. 2000ff–(1)(b)(2)) and EEOC's regulations (at 29 CFR 1635.8(b)(2) and (c)(2)) make it clear that an employer must obtain authorization for the collection of genetic information as part of providing health or genetic services to employees and their family members on a voluntary basis. Consequently, this proposed rule imposes no new obligations with respect to authorization for the collection of genetic information. We welcome comments on this and all of our conclusions concerning the benefits and burdens of the revisions.
This proposal contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Title II of GINA applies to all employers with 15 or more employees, approximately 764,233 of which are small firms (entities with 15–500 employees) according to data provided by the Small Business Administration Office of Advocacy.
The Commission certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities because it imposes no reporting burdens and only minimal costs on such firms. The proposed rule simply clarifies that employers that offer wellness programs are free to adopt a certain type of inducement without violating GINA. It also corrects an internal citation and provides citations to the Affordable Care Act. It does not require any action on the part of covered entities, except to the extent that those entities created documentation or forms which cite to GINA for the proposition that the entity is unable to offer inducements to employees in return for a spouse's completion of HRAs that request information about the spouse's current or past health. We do not have data on the number or size of businesses that may need to alter documents relating to their wellness programs. However, our experience with enforcing the ADA, which required all employers with 15 or more employees to remove medical inquiries from application forms, suggests that revising questionnaires to eliminate or alter an instruction would not impose significant costs.
To the extent that employers will expend resources to train human resources staff and others on the revised rule, we reiterate that the EEOC conducts extensive outreach and technical assistance programs, many of them at no cost to employers, to assist in the training of relevant personnel on EEO-related issues. For example, in FY 2013, the agency's outreach programs reached more than 280,000 persons through participation in more than 3,800 no-cost educational, training and outreach events. We expect to put information about the revisions to the GINA regulations in our outreach programs in general and to continue to offer GINA-specific outreach programs which will, of course, include information about the revisions once the proposed rule becomes final. We will also post technical assistance documents on our Web site explaining the revisions to the GINA regulations, as we do with all of our new regulations and policy documents.
We estimate that the typical human resources professional will need to dedicate, at most, 60 minutes to gain a satisfactory understanding of the revised regulations. We further estimate that the median hourly pay rate of a human resources professional is approximately $49.41.
This proposed rule 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, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Administrative practice and procedure, Equal employment opportunity.
For the Commission.
For the reasons set forth in the preamble, the EEOC proposes to amend chapter XIV of title 29 of the Code of Federal Regulations as follows:
29 U.S.C. 2000ff.
The revisions and additions read as follows:
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(A) The health or genetic services, including any acquisition of genetic information that is part of those services, are reasonably designed to promote health or prevent disease. A program satisfies this standard if it has a reasonable chance of improving the health of, or preventing disease in, participating individuals, and it is not overly burdensome, is not a subterfuge for violating Title II of GINA or other laws prohibiting employment discrimination, and is not highly suspect in the method chosen to promote health or prevent disease.
(ii) Consistent with the requirements of paragraph (b)(2)(i) of this section, a covered entity may not offer an inducement (financial or in-kind), whether in the form of a reward or penalty, for individuals to provide genetic information, except as described in paragraphs (b)(2)(iii) and (iv) of this section, but may offer inducements for completion of health risk assessments that include questions about family medical history or other genetic information, provided the covered entity makes clear, in language reasonably likely to be understood by those completing the health risk assessment, that the inducement will be made available whether or not the participant answers questions regarding genetic information.
(iii) Consistent with the requirements of paragraphs (b)(2)(i) and (ii) of this section, a covered entity may offer, as part of its health plan, an inducement to an employee whose spouse provides information about the spouse's own current or past health status as part of a health risk assessment when the employee has elected coverage for any class of dependents under the health plan, and the spouse is included in such coverage. No inducement may be offered, however, in return for the spouse's providing his or her own genetic information, including results of his or her genetic tests, for the current or past health status information of an employee's children, or for the genetic information of an employee's child. The health risk assessment, which may include a medical questionnaire, a medical examination (
(iv) When an employer offers an inducement for an employee and the employee's spouse to participate in a wellness program that requests information about the spouse's current or past health status:
(A) The maximum amount of the inducement for an employee's spouse to provide information about current or past health status may not exceed 30 percent of the total cost of coverage for the plan in which the employee is enrolled less 30 percent of the total cost of self-only coverage. For example, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents and $6,000 for self-only coverage, the maximum inducement the employer can offer for the employee and the employee's spouse to provide information about their current or past health status is 30 percent of $14,000, or $4,200. The maximum amount of the $4,200 inducement that could be offered for the employee's spouse to provide current or past health status information is $4,200 minus $1,800 (30 percent of the cost of self-only coverage), or $2,400
(B) The maximum amount of the inducement the employer may offer to the employee for participation is 30 percent of the cost of self-only coverage. For example, if an employer offers health insurance coverage at a total cost of $14,000 for employees and their dependents and $6,000 for self-only coverage, the maximum inducement that may be offered for the employee to respond to disability-related inquiries or take medical examinations is $1,800.
(vi) A covered entity may not, however, condition participation in a wellness program or provide any inducement to an employee, or the spouse or other covered dependent of the employee, in exchange for an agreement permitting the sale of genetic information, including information about the current health status of an employee's family member, or otherwise waiving the protections of § 1635.9.
(vii) Nothing contained in paragraphs (b)(2)(ii) through (vi) of this section limits the rights or protections of an individual under the Americans with Disabilities Act (ADA), as amended, or other applicable civil rights laws, or under the Health Insurance Portability and Accountability Act (HIPAA), as amended by GINA. For example, if an employer offers an inducement for participation in disease management programs or other programs that
(c) * * *
(2) A covered entity does not violate this section when, consistent with paragraph (b)(2) of this section, it requests, requires, or purchases genetic information or information about the manifestation of a disease, disorder, or pathological condition of an individual's family member who is receiving health or genetic services on a voluntary basis. For example, an employer does not unlawfully acquire genetic information about an employee when it asks the employee's family member who is receiving health services from the employer if her diabetes is under control. Nor does an employer unlawfully acquire genetic information about an employee when it seeks information—through a medical questionnaire, a medical examination, or both—about the current or past health status of the employee's family member who is covered by the employer's group health plan and is completing a health risk assessment on a voluntary basis in connection with the family member's receipt of health or genetic services (including health or genetic services provided as part of a wellness program) offered by the employer in compliance with paragraph (b)(2) of this section.
(b) * * *
(1) * * *
(iii) Section 702(a)(1)(F) of ERISA (29 U.S.C. 1182(a)(1)(F)), section 2705(a)(6) of the Public Health Service Act (PHSA), as amended by section 1201 of the Affordable Care Act and section 9802(a)(1)(F) of the Internal Revenue Code (26 U.S.C. 9802(a)(1)(F)), which prohibit a group health plan or a health insurance issuer in the group or individual market from discriminating against individuals in eligibility and continued eligibility for benefits based on genetic information; or
(iv) Section 702(b)(1) of ERISA (29 U.S.C. 1182(b)(1)), section 2705(b)(1) of the PHSA, as amended by section 1201 of the Affordable Care Act and section 9802(b)(1) of the Internal Revenue Code (26 U.S.C. 9802(b)(1)), as such sections apply with respect to genetic information as a health status-related factor, which prohibit a group health plan or a health insurance issuer in the group or individual market from discriminating against individuals in premium or contribution rates under the plan or coverage based on genetic information.
Environmental Protection Agency.
Proposed rule.
The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On June 28, 2010, the State of Idaho made a submittal to the Environmental Protection Agency (EPA) to address these requirements. The EPA is proposing to approve the submittal as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone National Ambient Air Quality Standard (NAAQS) in any other state.
Written comments must be received on or before November 30, 2015.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2015–0258, by any of the following methods:
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Kristin Hall at (206) 553–6357,
Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:
On March 12, 2008, the EPA revised the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). The CAA requires states to submit, within three years after promulgation of a new or revised standard, SIPs meeting the applicable “infrastructure” elements of sections 110(a)(1) and (2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to contain “good neighbor” provisions to prohibit certain adverse air quality effects on neighboring states due to interstate transport of pollution. There are four sub-elements within CAA section 110(a)(2)(D)(i). This action addresses the first two sub-elements of the good neighbor provisions, at CAA section 110(a)(2)(D)(i)(I). These sub-elements require that each SIP for a new or revised standard contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” or “interfere with maintenance” of the applicable air quality standard in any other state. We note that the EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the eastern portion of the United States in several past regulatory actions.
In CSAPR, the EPA used detailed air quality analyses to determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore not considered to significantly contribute to or interfere with maintenance of the standard in those downwind areas. If a state exceeded that threshold, the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary. For the reasons stated below, we believe it is appropriate to use the same approach we used in CSAPR to establish an air quality screening threshold for the evaluation of interstate transport requirements for the 2008 ozone standard.
In CSAPR, the EPA proposed an air quality screening threshold of one percent of the applicable NAAQS and requested comment on whether one percent was appropriate.
In the final CSAPR, the EPA determined that one percent was a reasonable choice considering the combined downwind impact of multiple upwind states in the eastern United States, the health effects of low levels of fine particulate matter and ozone pollution, and the EPA's previous use of a one-percent threshold in CAIR. The EPA used a single “bright line” air quality threshold equal to one percent of the 1997 8-hour ozone standard, or 0.08 ppm.
CAA sections 110(a)(1) and (2) and section 110(l) require that revisions to a SIP be adopted by the State after reasonable notice and public hearing. The EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices by prominent advertisement in the relevant geographic area, a public comment period of at least 30 days, and an opportunity for a public hearing.
On June 28, 2010, Idaho submitted a SIP to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the ozone NAAQS. The Idaho submittal included documentation of a public comment period from May 11, 2010 through June 10, 2010, and opportunity for public hearing. We find that the process followed by Idaho in adopting the submittal complies with the procedural requirements for SIP revisions under CAA section 110 and the EPA's implementing regulations.
With respect to the requirements in CAA section 110(a)(2)(D)(i)(I), the Idaho submittal referred to applicable rules in the Idaho SIP, meteorological and technical characteristics of areas with ozone nonattainment problems in surrounding states, data on nitrogen oxides (NO
The Idaho submittal provided further information to support this conclusion by citing major source permitting regulations approved into the Idaho SIP that require new sources and modifications to protect the ambient air quality standards, including the 2008 ozone NAAQS. With respect to existing sources, the Idaho submittal stated that stationary source operating rules in the Idaho SIP require an owner or operator to demonstrate that the source does not cause or contribute to a violation of any ambient air quality standard.
On August 4, 2015, the EPA issued a Notice of Data Availability (NODA) containing air quality modeling data that applies the CSAPR approach to contribution projections for the year 2017 for the 2008 8-hour ozone NAAQS.
The modeling data released in the NODA on July 23, 2015, is the most up-to-date information the EPA has developed to inform our analysis of upwind state linkages to downwind air quality problems. For purposes of evaluating Idaho's interstate transport SIP submittal with respect to the 2008 8-hour ozone standard, the EPA is proposing that states whose contributions are less than one percent to downwind nonattainment and maintenance receptors are considered non-significant. The modeling indicates that Idaho's largest contribution to any projected downwind nonattainment site is 0.23 ppb and Idaho's largest contribution to any projected downwind maintenance-only site is 0.35 ppb.
As discussed in Section II, Idaho concluded based on its own technical analysis that emissions from the State do not significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone standard in any other state. The EPA's modeling, discussed in Section III, confirms this finding. Based on the modeling data and the information and analysis provided in Idaho's June 28, 2010 submittal, we are proposing to approve the submittal for purposes of meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone standard. The EPA's modeling confirms the results of the State's analysis: Idaho does not significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone standard in any other state.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Commodity Credit Corporation and Farm Service Agency, USDA.
Notice.
On behalf of the Commodity Credit Corporation (CCC), the Farm Service Agency estimates that during fiscal year 2016, peanuts and peanut products in CCC inventory may be made available for programming under section 416 of the Agricultural Act of 1949, as amended, in such quantities as may be determined appropriate for direct human feeding in a manner consistent with United States obligations under its international trade agreements.
Tiffany Arthur; telephone (202) 720–4284. Persons with disabilities who require alternative means for communications should contact the USDA Target Center at (202) 720–2600 (voice).
15 U.S.C. 714b and 7 U.S.C. 1431(b)(8)(B).
Forest Service, USDA.
Notice of meeting.
The Tongass Advisory Committee (Committee) will meet in Ketchikan, Alaska. The Committee is established consistent with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C. App. 2). Committee recommendations and advice may directly inform the development of a proposed action for modification of the 2008 Tongass Land Management Plan. Additional information concerning the Committee can be found by visiting the Committee's Web site at:
The meetings will be held on:
• Tuesday, December 1, 2015 from 8:30 a.m. to 5:00 p.m. (AKDT).
• Wednesday, December 2, 2015 from 8:30 a.m. to 5:00 p.m. (AKDT).
• Thursday, December 3, 2015 from 8:30 a.m. to 3:30 p.m. (AKDT).
All meetings are subject to change and cancellation. For updated status of the meetings prior to attendance, please visit the Web site listed in the
The meetings will be held at the Best Western Landing Hotel, Sunny Point Ball Room, 3434 Tongass Avenue, Ketchikan, Alaska 99901. Written comments may be submitted as described under
Marina Whitacre, Committee Coordinator, by phone at 907–772–5934, or by email at
The purpose of the meetings is to:
1. Review Draft Environmental Impact Statement for the Tongass National Forest Plan Amendment;
2. Decide whether or not to amend the package of draft recommendations that was approved in May, 2015; and
3. Finalize TAC input regarding the Implementation and Monitoring Council.
The meetings are open to the public. For members of the public who are not able to attend the meeting in-person, but are interested in listening to the deliberations, a teleconference line will be available. Details regarding how to access the conference line will be posted at
The agenda will include time for people to make oral statements of three minutes or less. Time is allotted for oral statements on Wednesday, December 2, 2015, between 8:30 a.m. and 9:30 a.m. Individuals wishing to make an oral statement should register at the meeting. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee's staff before or after the meeting. Written comments must be sent to Jason Anderson, Designated Federal Officer, Tongass National Forest, P.O. Box 309, Petersburg, Alaska 99833; by email at
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the
Comments regarding this information collection received by November 30, 2015 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
U.S. Census Bureau, U.S. Department of Commerce.
Notice of Proposed Amendment to Privacy Act System of Records: COMMERCE/CENSUS–9, Longitudinal Employer-Household Dynamics System.
The Department of Commerce publishes this notice to announce the effective date of a Privacy Act System of Records notice entitled Notice of Proposed Amendment to Privacy Act System of Records: COMMERCE/CENSUS–9, Longitudinal Employer-Household Dynamics System.
The system of records becomes effective on October 30, 2015.
For a copy of the system of records please mail requests to: Chief, Privacy Compliance Branch, Room—8H021, U.S. Census Bureau, Washington, DC 20233–3700.
Chief, Privacy Compliance Branch, Room—8H021, U.S. Census Bureau, Washington, DC 20233–3700.
On September 17, 2015 (80 FR 55831), the Department of Commerce published a notice in the
Notice of retraction.
The International Trade Administration inadvertently published a notice of Final Redetermination Pursuant to Court Remand in Wheatland Tube Co. v. United States, in the
Cara Lofaro, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5720.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of Determination.
The National Ocean Council Committee on IUU Fishing and Seafood Fraud (NOC Committee) has finalized principles for determining seafood species at risk of IUU fishing and seafood fraud (at-risk species) and a list of at-risk species developed using the principles.
List of principles and at-risk species is final upon October 30, 2015.
Danielle Rioux, Office of Sustainable Fisheries, National Marine Fisheries Service (phone 301–427–8516, or email
According to NOAA statistics, in 2013, U.S. fishers landed 9.9 billion pounds of fish and shellfish worth $5.5 billion. Illegal, unreported, and unregulated (IUU) fishing and seafood fraud undermine the sustainability of U.S. and global seafood stocks and negatively impact general ecosystem health. At the same time, IUU fishing and fraudulent seafood products distort legal markets and unfairly compete with the products of law-abiding fishers and seafood industries globally. On March 15, 2015, the Presidential Task Force on Combating IUU Fishing and Seafood Fraud (Task Force), co-chaired by the Departments of Commerce and State, took an historic step to address these issues and published its Action Plan for Implementing Task Force Recommendations (Action Plan).
(
This final notice is one of several steps in the plan to implement Task Force Recommendations 14 and 15, identifying “species of fish or seafood that are presently of particular concern because they are currently subject to significant seafood fraud or because they are at significant risk of being caught by IUU fishing.” To begin implementing these recommendations, the NOC Committee created a Working Group (Working Group), led by NOAA and composed of members from partner agencies: Department of State, Food and Drug Administration, Department of Homeland Security, Customs and Border Protection, and the Office of the U.S. Trade Representative.
As the first step, the NOC Committee, through the Working Group, solicited public input through a
This publication is the NOC Committee's transmission of the list of species at risk of IUU fishing and seafood fraud to the agencies charged with implementing the Task Force recommendations for appropriate action, as requested in the Action Plan, as well as notification to the public. The list does not impose any legal requirements, but will inform the first phase of the risk-based seafood traceability program, as described in the Action Plan. The traceability program itself will be developed through notice-and-comment rulemaking, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, and that rulemaking will address data requirements, the design of the program, and the species to which the first phase of the program will be applied. Implementation and enforcement of the traceability program may require engagement of additional U.S. agencies.
To develop principles, the Working Group considered public comments received through both public comment periods. The Working Group evaluated the strength and utility of various principles as indicators for potential risk of IUU fishing or seafood fraud as well as their measurability and the robustness of data available to assess them. The Working Group minimized overlap of principles to ensure that a species' alignment with several principles does not overstate associated risk, and also to distinguish between risk of IUU fishing and risk of seafood fraud. The Working Group then applied the principles to a base list of species to develop the list of species at risk of IUU fishing or seafood fraud.
Based on the Working Group's evaluation and synthesis of comments received through both public comment periods, the final principles are listed below. Species and species groups were evaluated using these principles:
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Given the large number of seafood species that are domestically landed or imported, the Working Group created a base list of species for evaluation using several factors: (1) The value of domestic landings and imports (all seafood species with an imported or domestically-landed value over $100 million USD in 2014 were included on the base list); (2) species identified by the Working Group due to a high cost of product per pound (which could increase the incentive for IUU fishing and fraud); and (3) species proposed based on the expertise of representatives from the Working Group agencies. In some cases, the Working Group combined related species together in its analysis (
The Working Group determined that data from the past five years was the appropriate timeframe for decision-making because a longer timeframe might not reflect improvements that have been made in some fisheries over time and a shorter timeframe might not include sufficient data to identify risks to certain species.
The resulting list of species and groups analyzed by applying the principles listed above is set forth below. Note that this list is not the list of at-risk species to which the first phase of the traceability program will be applied:
Abalone; Billfish (Marlins, Spearfishes, and Sailfishes); Catfish (Ictaluridae); Cod, Atlantic; Cod, Pacific; Crab, Blue; Crab, Dungeness; Crab, King; Crab, Snow; Dolphinfish (Mahi Mahi); Oyster; Grouper; Haddock; Halibut, Atlantic; Halibut, Pacific; Lake or Yellow Perch; Lobster; Mackerel; Menhaden; Opah; Orange Roughy; Red Drum; Red Snapper; Sablefish; Salmon, Atlantic; Salmon, Chinook; Salmon, Chum; Salmon, Coho; Salmon, Pink; Salmon, Sockeye; Scallop; Sea bass; Sea cucumber; Shrimp; Sharks; Sole; Squid; Sturgeon caviar; Swordfish; Tilapia; Toothfish; Tunas (Albacore, Bigeye, Bluefin, Skipjack, Yellowfin); Wahoo; Walleye (Alaskan) Pollock; Pacific Whiting.
Based on public comments received on the draft list of at-risk species, the following eight additional species/species groups were also analyzed according to the principles described above: Anchovies; Eels; Flounder (Southern and Summer); Octopus; Queen Conch; Weakfish; Skates and Rays.
Both imported and domestically-landed species were evaluated using the same principles, data sources and methodology, as described below. Principles were not weighted and were evaluated evenly. Additionally, the Working Group considered the interaction of principles to be important. For example, the interaction between the enforcement capability, and history of violations was important when evaluating species. The presence or absence of one principle (
The following Federal agency offices contributed to the analysis of the list of species: the Office of Marine Conservation, Bureau of Oceans and International Environmental Affairs, Department of State; Office of the Under Secretary for Economic Growth, Energy, and Environment, Department of State; Office of International Affairs and Seafood Inspection, National Marine Fisheries Service, NOAA, Department of Commerce; Office of Sustainable Fisheries, National Marine Fisheries Service, NOAA, Department of Commerce; Office of Science and Technology, National Marine Fisheries Service, NOAA, Department of Commerce; Office of Law Enforcement, National Marine Fisheries Service, NOAA, Department of Commerce; Office of General Counsel, Enforcement Section, NOAA, Department of Commerce; and Office of General Counsel, Fisheries and Protected Resources Section, NOAA, Department of Commerce; U.S. Customs and Border Protection; U.S. Department of Homeland Security; Division of Seafood, Office of Food Safety, Food and Drug Administration; Office of Analytics and Outreach, Food and Drug Administration; Office of Compliance, Food and Drug Administration; Office of Environment and Natural Resources, U.S. Trade Representative; Office of General Counsel, U.S. Trade Representative. Resources from these offices, including data and expertise, drove the analysis and application of principles. Additional information used was from U.S. government-verifiable sources, such as data gathered by Regional Fisheries Management Organizations to which the United States is a member and whose scientific data is developed and reviewed with active U.S. government participation.
Sub-working groups composed of subject matter experts from the agencies listed above were created to complete the analyses of each species under each individual principle. The Working Group then combined the analyses done by the sub-working groups to determine which species were most at risk of IUU fishing and seafood fraud. The Working Group noted that the suite of risks posed to species varied not only in terms of which risks affected which species, but also in terms of the scale of the risks. For example, a single documented case of species substitution for a species that is sold in high volumes was considered differently than one case for a species rarely found in U.S. markets.
Additionally, as the Working Group discussed the suite of risks associated with the principles, a relationship became evident between the enforcement capability associated with a species and the history of violations. In many cases, a history of violations was indicative of a strong enforcement capability for a species. Conversely, for some species, a lack of violations history may have been due to an in-ability to detect or prosecute violations.
After the second round of public comment, the Working Group reconvened to discuss the eight new species or species groups added to the analysis in response to public comments plus new, relevant, U.S. government-verifiable information from the past five years applicable to species already analyzed. Based upon these discussions, the list of species now deemed to be at risk of IUU fishing and seafood fraud has been modified from the draft list.
The Working Group recognizes that all species of fish can be susceptible to some risk of IUU fishing or seafood fraud due to the inherent complexities in the fishing industry and supply chain. However, the species list has been developed to identify species for which the current risks of IUU fishing or seafood fraud warrant prioritization for the first phase of the traceability program. Pursuant to the Action Plan, implementation of the first phase of the traceability program will be regularly evaluated, beginning with a report to be issued by December 2016, in order to determine “whether it is meeting the intended objectives and how it can be expanded to provide more information to prevent seafood fraud and combat IUU fishing.”
Based on its evaluation, the Working Group identified the following list of species or species groups at risk of IUU fishing and seafood fraud, in alphabetical order. (Appendix A to this final notice lists the scientific names for these species and/or species groups.) Brief summaries of the Working Group findings are presented here. Detailed presentation of the data considered by the Working Group and its deliberations is protected from disclosure because of data confidentiality and enforcement implications.
The Working Group sought public comment specifically on how to narrow the scope of tunas on the list of at-risk species. Public comment received highlighted that the risk levels vary greatly depending on species. The Working Group further discussed the variability of the risk levels for IUU fishing and seafood fraud on a species by species basis. The Working Group has determined that Bluefin tuna species are at a lower risk of IUU fishing and seafood fraud than other tuna species and has determined that it should not be included on the list of at-risk species. This decision reflects our conclusion that two of the principles analyzed demonstrate that there is a lower risk of IUU and seafood fraud as compared to other tunas. First, there are robust catch documentation scheme in place for Atlantic bluefin tuna and Southern bluefin tuna entering the U.S. market, which are implemented through Regional Fisheries Management Organizations. Bluefin tuna was historically a target of IUU fishing and thus had a catch documentation scheme implemented for two of the three species world-wide, which are the two species comprising the vast majority of Bluefin that enters U.S. Commerce. A catch documentation scheme is under development for Pacific Bluefin tuna. The existing catch documentation scheme for Bluefin tuna does not eliminate all risk of IUU fishing, but it mitigates the risk to a low level. Second, Bluefin tuna does not have the history of species substitution that other tunas have, in part because of its different color and texture compared to other tunas, as well as the sophistication of Bluefin buyers, in discerning Bluefin from other fish. Although the Working Group recognizes that there may be further variance in risk level among the three Bluefin species, we have chosen to remove all three stocks, so as not to create any incentive for new species substitution schemes among the three Bluefin species.
Through the application of the principles for determining at-risk species, the Working Group identified two species—toothfish and catfish—that had a number of risk factors for IUU fishing or seafood fraud but, due to mechanisms to address those risks, are not being listed as at-risk species in this Notice.
Toothfish has been known, historically, as a species with IUU fishing concerns, which led to the development, by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), of a number of monitoring tools including a comprehensive catch documentation scheme. Without the existing level of reporting, documentation, and enforcement capability, including through measures adopted by CCAMLR, for this species, the Working Group would have found it to be at-risk.
The Working Group found that while existing measures do not eliminate risk for toothfish, they mitigate the IUU fishing and seafood fraud risks to such a level that the Working Group is not listing toothfish as an at-risk species for the first phase of the traceability program.
In the United States, seafood sold as catfish must be from the family
These risks were discussed and are fully recognized by the Working Group. However, there is a rulemaking on catfish inspection (
In response to the August 3, 2015,
To carry out this provision in the Bioterrorism Act, the Food Safety Modernization Act (FSMA) was enacted and it included enhancing tracking and tracing of food and recordkeeping. Under FSMA, FDA, working with the U.S. Department of Agriculture (USDA) and State agencies, has established two product tracing pilot projects carried out by the Institute of Food Technologists (IFT). The projects will help determine which data are most needed to trace a product that is in the market back to a common source and, once the contaminated ingredient is identified, to trace the product forward to know where it has been distributed. IFT has recommended steps for traceability improvement, and the information is still under review and we cannot make any comparative analyses.
The Working Group reviewed the following additional species, as suggested through public comments: Anchovies; Eels; Flounder (Southern and Summer); Octopus; Queen Conch; Weakfish; Skates and Rays. All of these species were evaluated using the same principles and methodology applied to the previously analyzed species. The Working Group did not find enough risk across the suite of principles to warrant adding any of the newly suggested species to the final list of at-risk species.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds a product and service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 9/11/2015 (80 FR 54768) and 9/18/2015 (80 FR 56450), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product and service and impact of the additions on the current or most recent contractors, the Committee has determined that the product and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product and service to the Government.
2. The action will result in authorizing small entities to furnish the product and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the product and service proposed for addition to the Procurement List.
Accordingly, the following product and service are added to the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletion from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities and, deletes a product previously furnished by an agency.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following product is proposed for deletion from the Procurement List:
10:00 a.m., Friday, November 6, 2015.
Three Lafayette Centre, 1155 21st Street NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, enforcement, and examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time,
Christopher Kirkpatrick, 202–418–5964.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing a new information collection for Office of Management and Budget (OMB) approval titled, “Policy on No-Action Letters.”
Written comments are encouraged and must be received on or before November 30, 2015 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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•
Documentation prepared in support of this information collection request is available at
Department of the Army, DoD.
Notice to reinstate a system of records.
The Department of the Army (DOA) proposes to reinstate a system of records, A0351 AMC, entitled “Student/Faculty Records: AMC Schools Systems” to its inventory of record systems to the Privacy Act of 1974, as amended. After publication of the deletion notice in the
Comments will be accepted on or before November 30, 2015. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Follow the instructions for submitting comments.
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Ms. Tracy Rogers, Department of the Army, Privacy Office, U.S. Army Records Management and Declassification Agency, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22315–3860 or by phone at 703–428–7499.
The Department of the Army systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
Student/Faculty Records: AMC Schools Systems (February 2, 1996, 61 FR 3916)
U.S. Army Management Engineering College, Rock Island, IL 61299–7040 and U.S. Army Defense Ammunition Center and School, Savanna, IL 61074–9639.
Students enrolled/attending schools identified above, faculty, instructors, and guest speakers.
Student academic records consisting of course completion and results, aptitudes and personal qualities, grades/ratings assigned; instructor/guest speaker qualifications and evaluations, including biographical data; class historical/academic achievements; and related information.
5 U.S.C. 301 and E.O. 9397 (SSN).
To determine applicant eligibility, monitor individual's progress, maintain record of student/faculty achievements, and to provide bases for management assessment of curricula and faculty effectiveness and class standing.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The `Blanket Routine Uses' set forth at the beginning of the Army's compilation of systems of records notices also apply to this system.
Paper records; cards; photographs; magnetic tapes/discs; and printouts.
By name, Social Security Number, military service number.
Records are maintained in locked cabinets within secured areas accessible only to authorized persons having an official need-to-know.
Individual academic records are retained for 40 years, 3 of which are at the school which created them; they are subsequently transferred to the National Personnel Records Center, 9700 Page Boulevard, St. Louis, MO 63132–5200. Faculty/instructor qualifications records are retained until individual transfers from the facility, held for 5 years, and then destroyed. Other records are retained until no longer needed, at which time they are destroyed.
Commander, U.S. Army Materiel Command, 5001 Eisenhower Avenue, Alexandria, VA 22333–0001.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commandant/Director of the appropriate School/Agency.
Individual should provide full name, rank/grade, Social Security Number, course title/class number, and date of attendance or, if a faculty member: Name, course(s) taught, and period in which instructed at named training facility.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commandant/Director of the appropriate School/Agency.
Individual should provide full name, rank/grade, Social Security Number, course title/class number, and date of attendance or, if a faculty member: Name, course(s) taught, and period in which instructed at named training facility.
The Army's rules for accessing records and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340–21; 32 CFR part 505; or may be obtained from the system manager.
From the individual student, faculty, instructor, guest speaker, and management analyses of class performance.
None.
Office of the Secretary of Defense, Department of Defense.
Notice of updated TRICARE Young Adult premiums for calendar year 2016.
This notice provides the updated TRICARE Young Adult program premiums for Calendar Year (CY) 2016.
The CY 2016 rates contained in this notice are effective for services on or after January 1, 2016.
Defense Health Agency, TRICARE Health Plan, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042–5101.
Mr. Mark A. Ellis, (703) 681–0039.
The final rule published in the
The Defense Health Agency has updated the monthly premiums for CY 2016 as shown below:
The above premiums are effective for services rendered on or after January 1, 2016.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by November 30, 2015.
Fred Licari, 571–372–0493.
Comments and recommendations on the proposed information collection should be emailed to Mr. Joshua Brammer, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Office of the Secretary of Defense, DoD.
Notice to add a new system of records.
The Office of the Secretary of Defense proposes to add a new system of records, DMDC 20, entitled “Personnel Security Breach Notification and Mitigation Services Records”. The Department of Defense is providing notification and facilitating the provision of breach mitigation services to individuals affected by the breach of information in the Office of Personnel Management (OPM) background investigation databases the Department must establish this system in order to provide notification to and facilitate the provision of breach mitigation services. Due to the number and proportion of affected individuals belonging to the DoD, DoD entered into agreements with OPM to handle the breach notification and mitigation services. DoD will also use these records to respond to breach verification inquiries. Individuals may go to OPM's Web site and click on a link that will redirect them to a DoD Web site where they can enter their information to find out if they have been affected by this breach. These records may also be used for tracking, reporting, measuring, and improving The Department's effectiveness in implementing this data breach notification.
Comments will be accepted on or before November 30, 2015. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301–1155, or by phone at (571) 372–0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on October 27, 2015, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Personnel Security Breach Notification and Mitigation Services Records.
Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955–6771.
Federal civilian and military personnel and applicants, and employees of government contractors, experts, instructors, and consultants to Federal programs who underwent a personnel background investigation after January 1, 1990. Other individuals whose Social Security Numbers (SSNs) were provided on an SF85, SF85–P and SF86 after January 1, 1990. Individuals who submit a breach verification inquiry. Minor children, who were minors as of July 1, 2015, of individuals described in this paragraph.
Last, first, and middle name; Social Security Number (SSN); date of birth, place of birth; citizenship status; country of citizenship; home and/or business addresses, phone numbers, and email addresses.
The E-Government Act of 2002 (Pub. L. 107–347); the Federal Information Security Modernization Act of 2014 (Pub. L. 113–283) (44 U.S.C. 3551–3559); 10 U.S.C. 113, Secretary of Defense; 50 U.S.C. 3038, Responsibilities of Secretary of Defense Pertaining to National Intelligence Program; E.O. 12333, United States Intelligence Activities, as amended; E.O. 13402, Strengthening Federal Efforts to Protect Against Identity Theft, as amended; E.O. 13526, Classified National Security Information; White House Memorandum dated September 20, 2006, Subject: Recommendations for Identity Theft Related Data Breach Notification; and E.O. 9397 (SSN), as amended.
To provide breach notification and facilitate the provision of breach mitigation services to individuals affected by the breach of information in the Office of Personnel Management (OPM) background investigation databases. DoD will also use the data to respond to breach verification inquiries received from individuals using the link on OPM's Web site that redirects individuals to a DoD Web site where they can enter their information to find out if they have been affected by this breach. These records may also be used for tracking, reporting, measuring, and improving the Department's effectiveness in implementing this data breach notification.
In addition to disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records may specifically be disclosed outside the DoD as follows:
To commercial entities, under contract with DoD, for the sole purpose of verifying addresses of affected individuals in order to provide notification to such individuals.
Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the Federal agency concerned, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
Disclosure of Information to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Disclosure to the Office of Personnel Management Routine Use: A record from a system of records subject to the Privacy Act and maintained by a DoD Component may be disclosed to the OPM concerning information necessary for the OPM to carry out its legally authorized functions.
Counterintelligence Purpose Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use outside the DoD for the purpose of counterintelligence activities authorized by U.S. Law or Executive Order or for the purpose of enforcing laws which protect the national security of the United States.
Data Breach Remediation Purposes Routine Use: A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) the Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component 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 Component's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Electronic storage media.
Records may be retrieved by an individual's name, SSN, date and place of birth.
Access to personally identifiable information is restricted to those who require access to the records in the performance of their official duties in connection with the breach notification process. Access to personally identifiable information is further restricted by the use of Personal Identity Verification (PIV) cards and PIN. Physical entry is restricted by the use of
The National Archives and Records Administration has authorized the destruction of these records 3 (three) year(s) after credit monitoring and identity management services have concluded.
Deputy Director for Identity, Defense Manpower Data Center, 4800 Mark Center, Alexandria, VA 22350–4000.
Deputy Director, Defense Manpower Data Center, DoD Center Monterey Bay, 400 Gigling Road, Seaside, CA 93955–6771.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Defense Manpower Data Center (DMDC), DoD Center Monterey Bay, ATTN: Privacy Act Office, 400 Gigling Road, Seaside, CA 93955–6771.
Signed, written requests must contain the full name (and any alias and/or alternate names used), SSN, and date and place of birth.
Individuals seeking information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301–1155.
Individuals should provide their full name (and any alias and/or alternate names used), SSN, and date and place of birth.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: `I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).'
If executed within the United States, its territories, possessions, or commonwealths: `I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).'
Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for their representative to act on their behalf.
The OSD rules for accessing records and for contesting or appealing agency determinations are published in OSD Administrative Instruction 81, 32 CFR part 311; or may be obtained directly from the system manager.
Individuals requesting verification via OPM's Web site who click on a link that will redirect them to a DoD Web site where they can enter their information to find out if they have been affected by this breach. The OPM (Personnel Investigations Records). Employees address records from Federal employers (
Parts of this record system may be exempt under 5 U.S.C. 552a(k)(1), as applicable.
An exemption rule for this record system has been promulgated according to the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 311. For additional information contact the system manager.
Defense Security Cooperation Agency, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by December 29, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for reviewing/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to: The Defense Security Cooperation Agency (DSCA) (ATTN: Paul Will), 220 12th Street South, Suite 312, Arlington, VA 22202–5408 or call (703) 601–3864.
Respondents are contractor personnel, Foreign Service nationals, guest speakers and lecturers involved in the Security Cooperation. If the information is not collected on the GlobalNET user request, IT personnel would not be able to validate the authenticity of user accounts, grant access critical training material required by participating partnering organization, enable Regional Center personnel to manage students while enrolled in training courses at regional centers, and ensure compliance with DepSecDef directive and federal law requiring the reporting of training of foreign nationals (ref. AECA).
Department of Defense.
Amendment of Federal Advisory Committee.
The Department of Defense is publishing this notice to announce that it is amending the charter for the Threat Reduction Advisory Committee (“the Committee”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
This committee's charter is being amended in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102–3.50(d).
The Committee is a discretionary Federal advisory committee that provides the Secretary of Defense, through the Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)) and the Assistant Secretary of Defense for Nuclear, Chemical, and Biological Defense Programs (ASD(NCB)), independent advice and recommendations on:
a. Reducing the threat to the United States, its military forces, and its allies and partners posed by nuclear, biological, chemical, conventional, and special weapons;
b. Combating WMD to include non-proliferation, counterproliferation, and consequence management;
c. Nuclear deterrence transformation, nuclear material lockdown and accountability;
d. Nuclear weapons effects;
e. The nexus of counterproliferation and counter WMD terrorism; and
f. Other AT&L, NCB, and Defense Threat Reduction Agency (DTRA) mission-related matters, as requested by the USD(AT&L).
The Department of Defense (DoD), through the Office of the USD(AT&L), the Office of the ASD(NCB) Defense Programs, and DTRA, shall provide support, as deemed necessary, for the Committee's performance, and shall ensure compliance with the requirements of the FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended) (“the Sunshine Act”), governing Federal statutes and regulations, and established DoD policies and procedures.
The Committee shall be composed of no more than 25 members who are eminent authorities in the fields of national defense, geopolitical and national security affairs, WMD, nuclear physics, chemistry, and biology.
The Committee members are appointed by the Secretary of Defense or the Deputy Secretary of Defense and their appointments shall be renewed on an annual basis in accordance with DoD policies and procedures. Those members, who are not full-time or permanent part-time Federal officers or employees, shall be appointed as experts or consultants, pursuant to 5 U.S.C. 3109, to serve as special government employee (SGE) members. Committee members who are full-time or permanent part-time Federal employees shall be appointed, pursuant to 41 CFR 102–3.130(a), to serve as regular government employee (RGE) members.
Committee members shall, with the exception of reimbursement for official Committee-related travel and per diem, serve without compensation, unless otherwise authorized by the Secretary of Defense.
The Secretary of Defense, in consultation with USD(AT&L) and the ASD(NCB), shall select the Committee's Chair and Vice Chair from among the membership approved by the Secretary of Defense or the Deputy Secretary of Defense.
The Secretary of Defense or the Deputy Secretary of Defense may approve the appointment of Committee members for one-to-four year terms of service; however, no member, unless authorized by the Secretary of Defense or the Deputy Secretary of Defense, may serve more than two consecutive terms of service, to include its subcommittees, or serve on more than two DoD Federal advisory committees at one time.
Each Committee member is appointed to provide advice on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Department, when necessary and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Committee. Establishment of subcommittees will be based upon written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the USD(AT&L), as the Committee's Sponsor.
Such subcommittees shall not work independently of the chartered Committee, and shall report their findings and advice solely to the Committee for full deliberation and discussion. Subcommittees have no authority to make decisions and recommendations, verbally or in writing, on behalf of the chartered Committee. No subcommittee or any of its members can update or report directly to the DoD or to any Federal officers or employees.
All subcommittee members shall be appointed in the same manner as the Committee members; that is, the Secretary of Defense or the Deputy Secretary of Defense shall appoint subcommittee members to a term of service of one-to-four years, with annual renewals, even if the member in
Subcommittee members, if not full-time or part-time government employees, shall be appointed to serve as experts or consultants, pursuant to 5 U.S.C. 3109, to serve as SGE members. Those individuals who are full-time or permanent part-time Federal officers or employees shall be appointed, pursuant to 41 CFR 102–3.130(a), to serve as RGE members. With the exception of reimbursement for official Committee-related travel and per diem, subcommittee members shall serve without compensation.
All subcommittees operate under the provisions of FACA, the Sunshine Act, governing Federal statutes and regulations, and established DoD policies and procedures.
The Designated Federal Officer (DFO), pursuant to DoD policy, shall be a full-time or permanent part-time DoD employee, and shall be appointed in accordance with established DoD policies and procedures.
In addition, the Committee's DFO is required to be in attendance at all committee and subcommittee meetings for the entire duration of each and every meeting. However, in the absence of the Committee's DFO, an Alternate DFO, duly appointed to the Committee, according to the DoD policies and procedures, shall attend the entire duration of the Committee or subcommittee meeting.
The DFO, or the Alternate DFO, shall call all of the Committee's and subcommittee's meetings; prepare and approve all meeting agendas; and adjourn any meeting when the DFO, or the Alternate DFO, determines adjournment to be in the public interest or required by governing regulations or DoD policies and procedures.
Pursuant to 41 CFR 102–3.105(j) and 102–3.140, the public or interested organizations may submit written statements to Committee membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Committee.
All written statements shall be submitted to the DFO for the Committee, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Committee's DFO can be obtained from the GSA's FACA Database—
The DFO, pursuant to 41 CFR 102–3.150, will announce planned meetings of the Committee. The DFO, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open Federal advisory committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the U.S. Army Corps of Engineers, Inland Waterways Users Board (Board). This meeting is open to the public. For additional information about the Board, please visit the committee's Web site at
The Army Corps of Engineers, Inland Waterways Users Board will meet from 9:00 a.m. to 1:00 p.m. on December 2, 2015. Public registration will begin at 8:15 a.m.
The Board meeting will be conducted at the Embassy Suites by Hilton St. Louis—St. Charles Hotel, Two Convention Center Plaza, St. Charles, Missouri 63303 at 636–946–5544.
Mr. Mark R. Pointon, the Designated Federal Officer (DFO) for the committee, in writing at the Institute for Water Resources, U.S. Army Corps of Engineers, ATTN: CEIWR–GM, 7701 Telegraph Road, Casey Building, Alexandria, Virginia 22315–3868; by telephone at 703–428–6438; and by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
Notice is hereby given that the Corps has released a Draft Environmental Impact Statement (DEIS) for the proposed Glades Reservoir water supply project (Proposed Project), and will conduct a Public Hearing for this DEIS.
Comments will be received until 5:00 p.m., December 29, 2015; or by letter postmarked no later than December 29, 2015. The public hearing will be held on December 8, 2015.
Comments regarding the DEIS may be submitted to: U.S. Army Corps of Engineers, Savannah District, Regulatory Division, Attention: SAS–2007–00388, 100 West Oglethorpe Avenue, Savannah, Georgia 31401–3640
Richard Morgan, Project Manager, at (912) 652–5139, or at
1. National Environmental Policy Act. The Corps prepared this DEIS to meet its National Environmental Policy Act (NEPA) (42 U.S.C. 4321 to 4370f) obligation in its evaluation of an application for a Department of the Army Permit pursuant to Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) for the Proposed Project. This DEIS presents the direct, indirect, and cumulative impacts of the Proposed Project on the human and natural environment.
2. Project Description. The Hall County Board of Commissioners submitted an application for a permit to construct an 850-acre pump-storage reservoir on Flat Creek, a tributary to the Chattahoochee River located approximately 35 miles northeast of Atlanta, near the upstream end of Lake Sidney Lanier, in Hall County, Georgia. The proposed dam would have a height of 140 feet, with a normal pool surface elevation of 1,180 feet above mean sea level. Dam and reservoir construction would result in the filling and inundation of 39.2 acres of wetland and 95,000 linear feet of stream. A 37 million gallon per day (mgd) intake and pump station would be constructed on the Chattahoochee River, and would transfer water from the river to the reservoir via a 48-inch diameter, 4-mile transmission pipeline. Water would be pumped from the Chattahoochee River to fill or refill the reservoir only when river flows are above the instream flow protection thresholds (IFPT), and only when the IFPT can be maintained in the river below the pump station. Water stored in the reservoir would be released into Flat Creek, flow downstream into Lake Lanier, and be withdrawn at an existing raw water intake operated by the City of Gainesville. The Proposed Project would provide a total storage volume of 11.7 billion gallons and an annual average water supply of 50 mgd, to meet Hall County's projected water demand through the year 2060.
2. Alternatives. This DEIS evaluated 13 alternatives for the Proposed Project based on a range of Lake Lanier allocations, reservoir sites, reservoir yield, and transmission and treatment strategies. A wide range of water supply sources such as water conservation, additional Lake Lanier water supply allocation, purchase from adjacent counties, and additional groundwater develop.m.ent were identified prior to
3. Issues. There are several potential environmental and public interest issues that were addressed in this DEIS. Public interest issues include but are not limited to potential effects to downstream flows of the Chattahoochee River; Lake Lanier water level and water supply capacity; potential aquatic resources impacts to streams, wetlands and aquatic organisms; and potential effects to cultural resources, aesthetics, recreation, infrastructure, navigation, transportation, and threatened and endangered species.
4. Scoping. A Notice of Intent (NOI) to prepare an EIS was published in the
5. Cooperating Agencies. The U.S. Environmental Protection Agency and the Georgia Environmental Protection Division have been participating in the NEPA process as cooperating agencies (40 CFR 1501.6, 1508.5). Formal cooperating agency agreements were executed between the Corps and these two agencies.
6. Availability of the DEIS. The DEIS and appendices are available to the public for review in the following formats:
a. In the
b. Online as PDF documents at
c. As a CD upon written request to the Corps address listed above.
7. Public Review and Comment. The public comment period will commence with the publication of this notice and will end 60 days after its publication, on December 29, 2015. All persons and organizations that have an interest in the proposed action, including minority, low-income, disadvantaged, and Native American groups, are urged to participate in this NEPA environmental analysis process by reviewing the DEIS and submitting comments for consideration. Further information regarding the DEIS, including all available documents, background and historical information, and updates is available online at
8. Comments may be submitted via the following methods:
a. At the public hearing through comment forms.
b. Verbally through the court reporter at public hearing.
c. By emailing
d. By letter addressed to the Corps address listed above.
e. Online at
9. Open House and Public Hearing. The Corps will hold an open house and public hearing to allow for public presentation of comments. The open house and public hearing will be held on Tuesday, December 8, 2015 from 5:00–9:00 p.m., at the Hall County Board of Commissioners' Auditorium, located at 2875 Browns Bridge Road, Gainesville, Georgia 30504. The open house will be from 5:00 p.m. to 6:00 p.m., with public hearing to begin at 6:00 p.m. and end at 9:00 p.m.
Department of the Navy, DoD.
Notice to add a new system of records.
The Department of the Navy proposes to add a new system of records, N01000–6, entitled “Strategic Programs (SP) 205 Training Records” to provide support and track the training progress of naval personnel (commissioned officers and enlisted) who manage, operate, and maintain Strategic Weapons System (SWS) and Attack Weapon System (AWS). To document and track the completion of and/or validate the training courses. To provide the status of the training to the commands, DoD training managers, and to the Navy personnel.
Comments will be accepted on or before November 30, 2015. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Robin Patterson, Head, PA/FOIA Office (DNS–36), Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350–2000, or by phone at (202) 685–6545.
The Department of the Navy notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on May 20, 2015, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Strategic Programs (SP) 205 Training Records.
Training records are located at multiple locations:
Chenega Logistics, 6506 Loisdale Road, Suite 200, Springfield, VA 22150–1815.
Trident Training Facility, 2000 Thresher Avenue, Silverdale, WA 9838–2004.
Trident Training Facility, 1040 Georgia Avenue, Kings Bay, GA 31547–2150.
USS Ohio SSGN 726
USS Michigan SSGN 727
USS Florida SSGN 728
USS Georgia SSGN 729
USS Henry M. Jackson SSBN 730
USS Alabama SSBN 731
USS Alaska SSBN 732
USS Nevada SSBN 733
USS Tennessee SSBN 734
USS Pennsylvania SSBN 735
USS West Virginia SSBN 736
USS Kentucky SSBN 737
USS Maryland SSBN 738
USS Nebraska SSBN 739
USS Rhode Island SSBN 740
USS Maine SSBN 741
USS Wyoming SSBN 742
USS Louisiana SSBN 743
All active duty naval personnel who are responsible for managing, operating, or maintaining the Strategic Weapon System (SWS) and Attack Weapon System (AWS).
Records include name, Social Security Number (SSN), DoD ID Number, date of birth, place of birth, rate/rank, military status, mailing/home address, role (
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 5013, Secretary of the Navy; OPNAVINST 1510.10C, Corporate Enterprise Training Activity Resource System; DoDI 1322.26, Development, Management and Delivery of Distributed Learning; and E.O. 9397 (SSN), as amended.
The Strategic Programs (SP) 205 Training Records system is designed to provide support and track the training progress of naval personnel (commissioned officers and enlisted) who manage, operate, and maintain Strategic Weapons System (SWS) and Attack Weapon System (AWS). To document and track the completion of and/or validate the training courses. To provide the status of the training to the commands, DoD training managers, and to the Navy personnel.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD Blanket Routine Uses set forth at the beginning of the Department of Navy's compilation of system of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
Electronic storage media.
Name, SSN, DoD ID Number, command name or command group, UIC, and/or CeTARS ID.
Physical access to the system is provided on a need-to-know and to Common Access Card (CAC) authorized and authenticated personnel. CAC authorization, assignment and monitoring are the responsibility of the functional training managers.
SP–205 Training Records are permanent. Cutoff at end of calendar year and transferred to the Washington National Records Center when 4 years old, and then transferred to the National Archives when 30 years old.
All third-party requests for disclosure of data from the SP–205 Training Records will be retained on board and destroyed when 2 years old. Deletion of individual records will be accomplished by erasing.
Director, Strategic Systems Programs HQ, 1250 10th Street, Washington Navy Yard, DC 20347–5127.
Individuals seeking to determine whether this system of records contain information about themselves should address written inquiries to the Director, Strategic Systems Programs HQ, 1250 10th Street, Washington Navy Yard, DC 20347–5127.
The request should contain full name, date of birth, place of birth, SSN, DoD ID Number, mailing/home address and signature of the requester.
In addition, the requestor must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare [or certify, verify, or state] under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [date]. [Signature]”
If executed within the United States, its territories, possessions, or commonwealths: “I declare [or certify, verify, or state] under penalty of perjury that the foregoing is true and correct. Executed on [date]. [Signature]”
Individuals seeking access to records about themselves contained in this system of records should address written inquiries to the Director, Strategic Systems Programs HQ, 1250 10th Street, Washington Navy Yard, DC 20347–5127.
The request should contain full name, date of birth, place of birth, SSN, DoD ID Number, mailing/home address and signature of the requester.
In addition, the requestor must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare [or certify, verify, or state] under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on [date]. [Signature]”
If executed within the United States, its territories, possessions, or commonwealths: “I declare [or certify, verify, or state] under penalty of perjury that the foregoing is true and correct. Executed on [date]. [Signature]”
The Navy's rule for accessing records and for contesting contents and appealing initial agency determination are published in Secretary in the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual, score reports, and Corporate Enterprise Training Activity Resource System Identification (CeTARS).
None.
National Assessment Governing Board, U.S. Department of Education.
Announcement of open and closed meetings.
This notice sets forth the agenda for the November 19–21, 2015 Quarterly Meeting of the National Assessment Governing Board (hereafter referred to as Governing Board). This notice provides information to members of the public who may be interested in attending the meeting or providing written comments on the meeting. The notice of this meeting is required under section 10(a)(2) of the Federal Advisory Committee Act (FACA).
The Quarterly Board meeting will be held on the following dates:
• November 19, 2015 from 3:00 p.m. to 6:00 p.m.
• November 20, 2015 from 8:30 a.m. to 5:00 p.m.
• November 21, 2015 from 7:30 a.m. to 12:00 p.m.
Westin Crystal City, 1800 Jefferson Davis Highway, Arlington, VA 22202.
Munira Mwalimu, Executive Officer, 800 North Capitol Street NW., Suite 825, Washington, DC 20002, telephone: (202) 357–6938, fax: (202) 357–6945.
The Board is established to formulate policy for the National Assessment of Educational Progress (NAEP). The Board's responsibilities include the following: Selecting subject areas to be assessed, developing assessment frameworks and specifications, developing appropriate student achievement levels for each grade and subject tested, developing standards and procedures for interstate and national comparisons, improving the form and use of NAEP, developing guidelines for reporting and disseminating results, and releasing initial NAEP results to the public.
The Board's standing committees will meet to conduct regularly scheduled work, based on agenda items planned for this quarterly Board meeting, and follow-up items as reported in the Board's committee meeting minutes available at
On November 19, 2015, from 3:00 p.m. to 4:00 p.m., the Board will receive a briefing in open session on
During the closed session, the Executive Committee will receive and discuss cost estimates and implications for implementing NAEP's Assessment Schedule for 2014–2024. This meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing confidential cost details and proprietary contract costs of current contractors to the public. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
On November 20, 2015, the Full Board will meet in open session from 8:30 a.m. to 9:45 a.m. The Board will review and approve the November 19–21, 2015 Board meeting agenda and meeting minutes from the August 2015 Quarterly Board meeting. This session will be followed by the Chairman's introduction of new Board members and remarks from new members. Thereafter, the Executive Director of the Governing Board, Bill Bushaw, will provide his report, followed by an update on the work of IES provided by Ruth Neild, Deputy Director for Policy and Research, IES. The NCES update will be provided by the Acting Commissioner of the NCES, Peggy Carr. The Board will recess for Committee meetings at 9:45 a.m. scheduled from 10:00 a.m. to 12:30 p.m.
The Assessment Development Committee (ADC) and the Reporting and Dissemination (R&D) Committee will meet in a joint closed session from 10:00 a.m. to 11:00 a.m. Thereafter R&D Committee will meet in open session from 11:00 a.m. to 12:30 p.m. The ADC will meet in open session from 11:00 a.m. to 11:30 a.m. and in closed session from 11:30 a.m. to 12:30 p.m. The purpose of the joint closed session is to review the embargoed reporting Web site content for the 2014 grade 8 Technology and Engineering Literacy (TEL) Report Card. This meeting is being conducted in closed session because the TEL results are embargoed and have not been released to the public. Public disclosure of the secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
The ADC will meet in open session from 11:00 a.m. to 11:30 a.m. to receive a briefing on NAEP digital-based assessments. From 11:30 a.m. to 12:30 p.m. the ADC will meet in closed session to receive a briefing on in-depth analyses of the 2015 Reading and Mathematics results at grades 4 and 8. This meeting must be closed because the briefing will include secure NAEP items from reading and math test results at grades 4 and 8. Public disclosure of
R&D will meet in open session from 11:00 a.m. to 12:30 p.m. to discuss NAEP Report Card releases and the Governing Board's ongoing work on reporting and dissemination.
The Committee on Standards, Design and Methodology (COSDAM) will meet in open session from 10:00 a.m. to 10:05 a.m. to introduce new Committee members and review the Committee meeting agenda. The Committee will meet in closed session from 10:05 a.m. to 12:10 p.m. and thereafter in open session from 12:10 p.m. to 12:30 p.m.
During the first part of the closed session COSDAM will discuss information regarding analyses of the 2015 bridge studies for paper-and-pencil and digital-based assessments, and discuss secure NAEP Reading and Mathematics data. This part of the meeting must be conducted in closed session because the analysis involves the use of secure data for the NAEP Reading and Mathematics assessments on digital-based platforms. Public disclosure of secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
During the second part of the closed session, COSDAM will discuss the proposed 2014 NAEP Technology and Engineering Literacy (TEL) achievement levels for grade 8, which includes secure NAEP TEL data. This part of the meeting must be conducted in closed session because the analysis involves the use of secure data for the NAEP TEL assessment. Public disclosure of secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C. COSDAM will meet in open session from 12:10 p.m. to 12:30 p.m. to take Committee action on achievement levels and discuss ongoing Committee work.
Following the Committee meetings, the Board will convene in closed session on November 20, 2015 from 12:50 p.m. to 2:20 p.m. to discuss the proposed 2014 NAEP Technology and Engineering Literacy (TEL) achievement levels for grade 8, which includes secure NAEP TEL data. This part of the meeting must be conducted in closed session because the analysis involves the use of secure data for the NAEP TEL assessment. Public disclosure of secure data would significantly impede implementation of the NAEP assessment program if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
Thereafter, the Board will meet in open session from 2:45 p.m. to 5:00 p.m. From 2:45 p.m. to 3:30 p.m., the Board will meet in open session to receive a briefing on the 2015 Trial Urban District Assessment (TUDA) Report Card in English and Mathematics. From 3:30 p.m. to 4:15 p.m., the Board will receive the annual briefing from the Council of Chief State School Officers and Governing Board Policy Task Force Vice Chair and Assistant Superintendent form the Virginia Department of Education, Shelly Loving-Ryder. From 4:15 p.m. to 4:30 p.m. the Governing Board members will be provided with the annual ethics briefing from Office of General Counsel staff.
The November 20, 2015 session of the Board meeting will adjourn at 5:00 p.m.
On November 21, 2015, the Nominations Committee will meet in closed session from 7:30 a.m. to 8:15 a.m. to discuss the final slate of candidates for seven Board vacancies for terms beginning on October 1, 2016. The Committee's discussions pertain solely to internal personnel rules and practices of an agency and information of a personal nature where disclosure would constitute an unwarranted invasion of personal privacy. As such, the discussions are protected by exemptions 2 and 6 of section 552b(c) of Title 5 of the United States Code. Following the closed session, the Committee will meet in open session from 8:15 a.m. to 8:20 a.m. to discuss and take action on the slate of finalists in the Chief State School Officer category for 2015. The final slate of candidates for this open position will be brought before the Board for discussion and action on November 21, 2015.
The full Board will convene in closed session on Saturday, November 21, 2015 from 8:30 a.m. to 8:35 a.m. The purpose of the closed session is to receive and discuss the slate of finalists being recommended for action by the Nominations Committee for the Chief State School Officer position, to be appointed by the Secretary of Education in 2016. At 8:35 a.m., the Board will take action in open session on the slate of Chief State School Officer finalists for the vacancy.
The Board will meet in closed session from 8:45 a.m. to 9:35 a.m. to receive an update on the NAEP budget and planned changes to the NAEP Assessment Schedule. During the closed session, the Board will receive and discuss cost estimates and implications for implementing NAEP's Assessment Schedule for 2014–2024. This meeting must be conducted in closed session because public disclosure of this information would likely have an adverse financial effect on the NAEP program by providing confidential cost details and proprietary contract costs of current contractors to the public. Discussion of this information would be likely to significantly impede implementation of a proposed agency action if conducted in open session. Such matters are protected by exemption 9(B) of section 552b of Title 5 U.S.C.
The Board will take action on the NAEP Assessment Schedule from 9:35 a.m. to 9:45 a.m. in open session. Thereafter, from 10:00 a.m. to 11:00 a.m. the Board will receive updates on NCES' Future of NAEP Activities and the Governing Board's Strategic Planning Initiative.
From 11:30 a.m. to 12:00 p.m. the Board will receive reports from the standing committees and take action proposed by the Committee on Standards, Design and Methodology on the TEL Achievement Levels at Grade 8. The November 21, 2015 meeting is scheduled to adjourn at 12:00 p.m.
You may also access documents of the Department published in the
Pub. L. 107–279, Title III—National Assessment of Educational Progress section 301.
National Center for Education Statistics (NCES), 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 November 30, 2015.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela at (202) 502–7411 or by email
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.
Department of Energy.
Designation of Performance Review Board Standing Register.
This notice provides the Performance Review Board Standing Register for the Department of Energy. This listing supersedes all previously published lists of PRB members.
This appointment is effective as of September 30, 2015.
Department of Energy.
Designation of Performance Review Board Chair.
This notice provides the Performance Review Board Chair designee for the Department of Energy. This listing supersedes all previously published lists of Performance Review Board Chair.
This appointment is effective as of September 30, 2015: Dennis M. Miotla.
U.S. Energy Information Administration (EIA), Department of Energy.
Agency Information Collection Activities: Information Collection Extension with Changes; Notice and Request for Comments.
The EIA invites public comment on the proposed collection of information, EIA–882T, “Generic Clearance for Questionnaire Testing, Evaluation, and Research” that EIA is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on 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; 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; 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, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be received on or before December 29, 2015. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to Jacob Bournazian, Energy Information Administration, 1000 Independence Avenue SW., Washington DC 20585 or by fax at 202–586–0552 or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Jacob Bournazian, Energy Information Administration, 1000 Independence Avenue SW., Washington, DC 20585, phone: 202–586–5562, email:
This information collection request contains:
(1)
(2)
(3)
(4)
The specific methods proposed for the coverage by this clearance are described below. Also outlined is the legal authority for these voluntary information gathering activities.
The following methods are proposed:
(5)
(6)
(7)
(8)
Section 13(b) of the Federal Energy Administration Act of 1974, Public Law 93–275, codified at 15 U.S.C. 772(b).
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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
Staff also has preliminarily determined that Berkshire violated Commission-approved reliability standards by failing to provide outage information to its Transmission Operator and failing to inform its Transmission Operator and Host Balancing Authority of all generation resources available for use.
Finally, Staff also has preliminarily determined that Berkshire violated Commission regulations 35.41(a) by failing to comply with various provisions of the ISO–New England (ISO–NE) Tariff and § 35.41(b) by making false and misleading statements to ISO–NE regarding its maintenance work and associated outages.
This notice does not confer a right on third parties to intervene in the investigation or any other right with respect to the investigation.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 on October 13, 2015 Eastern Shore Natural Gas Company (Eastern Shore), 1110 Forrest Avenue, Dover, Delaware, 19904, filed in the above referenced docket a prior notice application pursuant to sections 157.205, 157.208, and 157.210 of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act (NGA), and Eastern Shore's blanket certificate issued in Docket No. CP96–128–000. Eastern Shore seeks authorization to increase the certificated capacity of its Receipt Zone 1 facilities by 53,000 dekatherms per day, all as more fully set forth in the application, which is open to the public for inspection.
The filing may also be viewed on the Web at
Any questions concerning this application may be directed to William Rice, King & Spalding LLP, 1700 Pennsylvania Avenue NW., Suite 200, Washington, DC 20006, by phone 202–626–9602, by fax 202–626–3737, or by email
Specifically, Eastern Shore's Receipt Zone 1 consists of eight-mile long sixteen-inch diameter pipeline and interconnect with Texas Eastern Transmission, LP (Texas Eastern) in Chester County, PA. Eastern Shore proposes to increase meter capacity and upgrade pressure and flow control equipment at the interconnect with Texas Eastern to accommodate additional capacity. Eastern Shore states that proposed project has been designed based on the customer requests received during an open season that Eastern Shore conducted in the month of June, 2015. Eastern Shore further states that the total estimated cost of the project is $1,375,038 and will be covered by the customer commitments.
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission's staff may attend the following meeting related to the transmission planning activities of the New York Independent System Operator, Inc.
The above-referenced meeting will be via Web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via Web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The discussions at the meeting described above may address matters at issue in the following proceedings:
For more information, contact James Eason, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502–8622 or
Take notice that the Commission received the following electric rate 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:
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Diesel Emissions Reduction Act (DERA) Rebate Program” (EPA ICR No. 2461.02, OMB Control No. 2060–0686) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before November 30, 2015.
Submit your comments, referencing Docket ID Number EPA–HQ–OAR–2012–0103, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Tyler Cooley, Office of Transportation and Air Quality, (Mail Code: 6406A),
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
EPA uses approved procedures and forms to collect necessary information to operate its grant and rebate programs as authorized by Congress under the DERA program. EPA collects information from applicants to the DERA rebate program. Information collected is used to ensure eligibility of applicants and engines to receive funds under DERA, and to calculate estimated and actual emissions benefits that result from activities funded with rebates as required in DERA's authorizing legislation.
Environmental Protection Agency (EPA).
Notice of public advisory committee teleconference.
Pursuant to the Federal Advisory Committee Act, Public Law 92–463, notice is hereby given that the Good Neighbor Environmental Board (Board) will hold a public teleconference on November 30, 2015. For further information regarding the teleconference and background materials, please contact Ann-Marie Gantner at the number and email provided below.
The Board will hold a public teleconference on November 30, 2015 from 11 a.m. to 3 p.m. Eastern Standard Time.
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 Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the 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 OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before December 29, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
OMB Control Number: 3060–0609.
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 (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 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 Commission 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 November 13, 2015.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information about the information collection, contact Cathy Williams at (202) 418–2918.
The Commission is requesting emergency OMB processing of the information collection requirement(s) contained in this notice and has requested OMB approval no later than 19 days after the collection is received at OMB. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
Under this information collection, the Commission will collect information that will be used to determine whether an applicant is legally qualified to participate in a reverse incentive auction. To aid in collecting this information, the Commission has created FCC Form 177, which the public will use to participate in reverse incentive auctions, including the Commission's upcoming broadcast incentive reverse auction. The Commission's auction rules and related requirements are designed to ensure that the competitive bidding process is limited to serious qualified applicants, deter possible abuse of the bidding and licensing process, and enhance the use of competitive bidding to assign Commission licenses and permits in furtherance of the public interest. The information collected on FCC Form 177 will be used by the Commission to determine if an applicant is legally qualified to participate in the reverse auction. Commission staff will review the information collected on FCC Form 177 as part of the pre-auction process, prior to the start of the reverse auction. Staff will determine whether each applicant satisfies the Commission's requirements to participate in the reverse auction. Without the information collected on FCC Form 177, the Commission will not be able to determine if an applicant is legally qualified to participate in the reverse auction and has complied with the various applicable regulatory and statutory auction requirements for such participation.
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 Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the 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 OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 30, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
On January 31, 2013, the Commission adopted a Report and Order, in ET Docket No. 10–236 and 06–155; FCC 13–15, which updates Part 5 of the CFR—“Experimental Radio Service” (ERS). The Commission's recent Report and Order revises and streamlines rules under for the Experimental Radio Service (ERS).
The new rules provide additional license categories to potential licensees. The new license categories are:
• Program Experimental Radio License—This type of license is issued to qualified institutions to conduct an ongoing program of research and experimentation under a single experimental authorization. Program experimental radio licenses are available to colleges, universities, research laboratories, manufacturers of radio frequency equipment, manufacturers that integrate radio frequency equipment into their end products, and medical research institutions.
• Medical Program Experimental Radio License—This type of license is issued to hospitals and health care institutions that demonstrate expertise in testing and operation of experimental medical devices that use wireless telecommunications technology or communications functions in clinical trials for diagnosis, treatment, or patient monitoring.
• Compliance testing experimental radio license—This type of license will be issued to laboratories recognized by the FCC to perform:
(i) Product testing of radio frequency equipment, and
(ii) Testing of radio frequency equipment in an Open Area Test Site.
To accomplish this transition, the Commission will updates the current “Experimental Licensing Radio” electronic filing system. The existing ELS Form 442 interface will require modification; and the ELS database will require modification to facilitate inter-operability with the new ELS notification Web site. There will are new screen shots for the Web site/licensees. Office of Engineering and Technology Web site
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 Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the 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 OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 30, 2015. If you anticipate that you will be
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418–2991.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
Collection of the information on FCC Forms 470 and 471 is necessary so that the Commission and the Universal Service Administrative Company (USAC) have sufficient information to determine if entities are eligible for funding pursuant to the schools and libraries support mechanism (the E-rate program), to determine if entities are complying with the Commission's rules, and to prevent waste, fraud, and abuse. In addition, the information is necessary for the Commission to evaluate the extent to which the E-rate program is meeting the statutory objectives specified in section 254(h) of the 1996 Act, and the Commission's own performance goals established in the
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10089, Security Bank of North Fulton, Alpharetta, Georgia (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Security Bank of North Fulton (Receivership Estate); The Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective November 1, 2015 the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10406, Community Capital Bank, Jonesboro, Georgia (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Community Capital Bank (Receivership Estate); The Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective October 1, 2015 the Receivership Estate has been terminated, the Receiver discharged,
Public Buildings Service, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement regarding the Application/Permit for Use of Space in Public Buildings and Grounds, GSA Form 3453. A notice was published in the
Submit comments on or before: November 30, 2015.
Submit comments identified by Information Collection 3090–0044, Application/Permit for Use of Space in Public Buildings and Grounds, GSA Form 3453, by any of the following methods:
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Submit comments via the Federal eRulemaking portal by searching the OMB control number. Select the link “Submit a Comment” that corresponds with “Information Collection 3090–0044, Application/Permit for Use of Space in Public Buildings and Grounds, GSA Form 3453.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “Information Collection 3090–0044, Application/Permit for Use of Space in Public Buildings and Grounds, GSA Form 3453,” on your attached document.
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Ms. Karen Handsfield, Public Buildings Service, at telephone 202–208–2444, or via email to
The general public uses Application/Permit for Use of Space in Public Buildings and Grounds, GSA Form 3453, to request the use of public space in Federal buildings and on Federal grounds for cultural, educational, or recreational activities. A copy, sample, or description of any material or item proposed for distribution or display must also accompany this request.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 29, 2015.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Collecting voluntary customer feedback is the least burdensome, most effective way for the Agency to determine whether or not its public Web sites are useful to and used by its customers. Generic clearance is needed to ensure that the Agency can continuously improve its Web sites though regular surveys developed from these pre-defined questions. Surveying the Agency Web sites on a regular, ongoing basis will help ensure that users have an effective, efficient, and satisfying experience on any of the Web sites, maximizing the impact of the information and resulting in optimum benefit for the public. The surveys will ensure that this communication channel meets customer and partner priorities, builds the Agency's brands, and contributes to the Agency's health and human services impact goals.
The following is the hour of burden estimate for this information collection:
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of a revised draft guidance for industry entitled “Liposome Drug Products: Chemistry, Manufacturing, and Controls; Human Pharmacokinetics and Bioavailability; and Labeling Documentation.” This revised draft guidance document replaces the draft of the same name that published on August 21, 2002. This revised draft guidance provides recommendations to applicants on the chemistry, manufacturing, and controls (CMC); pharmacokinetics and bioavailability; and labeling documentation for liposome drug products submitted in new drug applications (NDAs), abbreviated new drug applications (ANDAs), and biologics license applications (BLAs) reviewed by the Center for Drug Evaluation and Research (CDER).
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by December 29, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of the draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002. Send one self-addressed adhesive
Richard T. Lostritto, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 4148, Silver Spring, MD 20993–0002, 301–796–1697.
The FDA is announcing the availability of a revised draft guidance for industry entitled “Liposome Drug Products: Chemistry, Manufacturing, and Controls; Human Pharmacokinetics and Bioavailability; and Labeling Documentation.” This revised draft guidance provides recommendations to applicants on the CMC, human pharmacokinetics and bioavailability, and labeling documentation for liposome drug products submitted in NDAs, ANDAs, and BLAs reviewed by CDER. This revision adds BLAs and ANDAs. It also updates the discussions on liposome technology.
In the
The revised draft guidance does not provide recommendations on clinical efficacy and safety studies, nonclinical pharmacology and/or toxicology studies, liposome formulations of vaccine adjuvants or biologics, or drug-lipid complexes.
This revised draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). This revised draft guidance, when finalized, will represent the Agency's current thinking on liposome drug products. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This revised draft guidance refers to previously approved collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 314 have been approved under OMB control number 0910–0001.
Persons with access to the Internet may obtain the revised draft guidance at either
Food and Drug Administration, HHS.
Notice of administrative stay of action.
The Food and Drug Administration (FDA or we) is announcing a stay of portions of the final guidance for clinical investigators, sponsors, and institutional review boards (IRBs) entitled “Investigational New Drug Applications—Determining Whether Human Research Studies Can Be Conducted Without an IND.” We are republishing the guidance with the portions that are being stayed clearly identified so readers can distinguish parts of the guidance that remain in effect from parts that are subject to this stay.
This stay is effective October 30, 2015 Submit either electronic or written comments on FDA guidances at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential
Philip L. Chao, Center for Food Safety and Applied Nutrition (HFS–024), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240–402–2112, email:
In the
FDA is staying part of the final guidance to allow for further consideration of issues raised by the comments submitted in response to the notice to reopen. Specifically, we are staying portions of subsection VI.D.2, “Conventional Food,” and all of subsection VI.D.3, “Studies Intended to Support a Health Claim,” except as to studies intended to evaluate whether a food substance reduces the risk of a disease in individuals less than 12 months old, those with altered immune systems, and those with serious or life-threatening medical conditions. Subsections VI.D.2 and VI.D.3 discuss, respectively, conventional food studies generally and studies intended to support a health claim for a conventional food or dietary supplement. The portions of subsection VI.D.2 that are being stayed are the third paragraph (which pertains to clinical studies intended to evaluate a food's effect on the structure or function of the body) and a sentence in the fourth paragraph concerning clinical studies intended to evaluate a non-nutritional effect on the structure or function of the body. In subsection VI.D.3, a text box inserted below the subsection heading explains that clinical investigations intended to evaluate whether a food substance may reduce the risk of a disease in three categories of medically vulnerable subjects (individuals less than 12 months old, those with altered immune systems, and those with serious or life-threatening medical conditions) are excluded from the stay, and that subsection VI.D.3 is in effect for such investigations.
The stay of portions of subsection VI.D.2 and all of subsection VI.D.3 (subject to the exclusion for studies in the medically vulnerable populations described in this document) of the final guidance is effective immediately. All other parts of the final guidance remain in effect. We are republishing the guidance with the stayed material clearly identified so readers can distinguish parts of the guidance that remain in effect from parts that are subject to the stay.
FDA generally does not intend to seek INDs for studies in the stayed categories while the stay is in effect. This stay does not, however, preclude enforcement of any provision of the FD&C Act or other relevant Federal statutes or regulations other than IND requirements (
In summary, while the partial stay of the final guidance is in effect, FDA does not consider clinical investigators or study sponsors to be under any
• Clinical studies designed to evaluate whether a conventional food may reduce the risk of a disease, intended to support a new or expanded health claim, and conducted in a population that does not include individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions;
• Clinical studies designed to evaluate a non-nutritional effect of a conventional food on the structure or function of the body.
• Clinical studies designed to evaluate whether a dietary supplement may reduce the risk of a disease, intended to support a new or expanded health claim, and conducted in a population that does not include individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions.
Further, as noted in the final guidance itself, no IND is required for clinical studies designed to evaluate the nutritional effects of a conventional food, clinical studies designed to evaluate a dietary supplement's effects on the structure or function of the body, or clinical studies designed to evaluate the relationship between a conventional food or dietary supplement and reduced risk of a disease, if there is already an authorized health claim for the substance-disease relationship.
The following types of studies do continue to require an IND for the reasons explained in the final guidance:
• Clinical studies designed to evaluate a conventional food's ability to diagnose, cure, mitigate, treat, or prevent a disease, except for studies designed to evaluate whether a conventional food reduces the risk of a disease, intended to support a health claim, and conducted in a population that does not include individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions;
• Clinical studies designed to evaluate whether a food substance reduces the risk of a disease, intended to support a new or expanded health claim, and conducted in a population that includes individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions.
• Clinical studies designed to evaluate a dietary supplement's ability to diagnose, cure, mitigate, treat, or prevent a disease, except for studies designed to evaluate whether a dietary supplement reduces the risk of a disease, intended to support a health claim, and conducted in a population that does not include individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions;
• Clinical studies designed to evaluate whether a dietary supplement reduces the risk of a disease, intended to support a new or expanded health claim, and conducted in a population that includes individuals less than 12 months old, those with altered immune systems, or those with serious or life-threatening medical conditions.
• Clinical studies designed to evaluate a cosmetic's effect on the structure or function of the body or its ability to diagnose, cure, mitigate, treat, or prevent a disease.
Food and Drug Administration, HHS.
Notice of meeting; request for comments.
The Food and Drug Administration (FDA), in collaboration with the Johns Hopkins Center of Excellence in Regulatory Science and Innovation, is announcing a public workshop entitled “Clinical Trials—Assessing Safety and Efficacy in Diverse Populations.” The purpose of the meeting is to discuss approaches in clinical trial design and subgroup analyses for therapeutic product development and life-cycle management.
The meeting will be held on December 2, 2015, from 9 a.m. to 5 p.m.
The meeting will be held at the FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993–0002. Entrance for the public meeting participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Martin Mendoza, Office of Minority Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 2306, Silver Spring, MD 20993–0002,
The purpose of this public workshop is to facilitate a unique opportunity for relevant stakeholders, including industry, academia, patients, and FDA, to discuss the importance of diversity in medical research and the incorporation of participant diversity in the design, analysis, and regulation of medical interventions. Medical interventions may have different benefits and harms for subgroups within a population. If clinical trials do not include an adequate number of participants who are representative of people likely to use an approved intervention, then the average results of clinical trials might not be replicated in practice. Even if clinical trials include representative participants, important subgroup differences might not be detectable if their representation is not adequate. For these reasons, regulators might use a combination of information from clinical trials and other data sources to address questions about heterogeneity across large and diverse populations. The use of data from patients in their usual care setting (“real-world” data) may be particularly valuable for understanding this heterogeneity.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Guidance for Industry on Controlled Correspondence Related to Generic Drug Development” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
On July 9, 2015, the Agency submitted a proposed collection of information entitled “Guidance for Industry on Controlled Correspondence Related to Generic Drug Development” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910–0797. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) has determined that the drug products listed in this document were not withdrawn from sale for reasons of safety or effectiveness. This determination means that FDA will not begin procedures to withdraw approval of abbreviated new drug applications (ANDAs) that refer to these drug products, and it will allow FDA to continue to approve ANDAs that refer to the products as long as they meet relevant legal and regulatory requirements.
Stacy Kane, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6207, Silver Spring, MD 20993–0002, 301–796–8363,
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA applicants must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is a version of the drug that was previously approved. ANDA applicants do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA).
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is generally known as the “Orange Book”. Under FDA regulations, a drug is removed from the list if the Agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness, or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
Under § 314.161(a) (21 CFR 314.161(a)), the Agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness: (1) Before an ANDA that refers to that listed drug may be approved, (2) whenever a listed drug is voluntarily withdrawn from sale and ANDAs that refer to the listed drug have been approved, and (3) when a person petitions for such a determination under 21 CFR 10.25(a) and 10.30. Section 314.161(d) provides that if FDA determines that a listed drug was withdrawn from sale for safety or effectiveness reasons, the Agency will initiate proceedings that could result in the withdrawal of approval of the ANDAs that refer to the listed drug.
FDA has become aware that the drug products listed in the table in this document are no longer being marketed.
FDA has reviewed its records and, under § 314.161, has determined that the drug products listed in this document were not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the Agency will continue to list the drug products listed in this document in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” identifies, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness.
Approved ANDAs that refer to the NDAs and ANDAs listed in this document are unaffected by the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Impact of Ad Exposure Frequency on Perception and Mental Processing of Risks and Benefit Information in Direct-to-Consumer Prescription Drug Ads” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
On June 29, 2015, the Agency submitted a proposed collection of information entitled “Impact of Ad Exposure Frequency on Perception and Mental Processing of Risks and Benefit Information in Direct-to-Consumer Prescription Drug Ads” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910–0803. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Survey of Pharmacists and Patients; Variations in the Physical Characteristics of Generic Drug Pills and Patient Perceptions” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE–14526, Silver Spring, MD 20993–0002,
On May 28, 2015, the Agency submitted a proposed collection of information entitled “Survey of Pharmacists and Patients; Variations in the Physical Characteristics of Generic Drug Pills and Patient Perceptions” to OMB for review and clearance under 44 U.S.C. 3507. 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. OMB has now approved the information collection and has assigned OMB control number 0910–0801. The approval expires on September 30, 2018. A copy of the supporting statement for this information collection is available on the Internet at
Title 5, U.S.C. Section 4314(c)(4) of the Civil Service Reform Act of 1978, Public Law 95–454, requires that the appointment of Performance Review Board Members be published in the
The following persons may be named to serve on the Performance Review Boards or Panels, which oversee the evaluation of performance appraisals of Senior Executive Service members of the Department of Health and Human Services.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Hooker Electrochemical Corporation in Niagara Falls, New York, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 1090 Tusculum Avenue, MS C–46, Cincinnati, OH 45226–1938, Telephone 877–222–7570. Information requests can also be submitted by email to
42 U.S.C. 7384q(b). 42 U.S.C. 7384
On September 22, 2015, as provided for under 42 U.S.C. 7384l(14)(C), the Secretary of HHS designated the following class of employees as an addition to the SEC:
All Atomic Weapons Employees who worked at the Hooker Electrochemical Corporation in Niagara Falls, New York, during the operational period from July 1, 1944, through December 31, 1948, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
This designation became effective on October 22, 2015. Therefore, beginning on October 22, 2015, members of this class of employees, defined as reported in this notice, became members of the SEC.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the NICHD, the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Anyone can access NICHD DASH to browse and view descriptive information about the studies and data archived in NICHD DASH without creating an account. Users who wish to submit or request research study data must register for an account.
Information will be collected from those wishing to create an account, sufficient to identify them as unique Users. Those submitting or requesting data will be required to provide additional supporting information to ensure proper use and security of NICHD DASH data. The information collected are limited to the essential data required to ensure that the management of Users in NICHD DASH is efficient and the sharing of data among investigators is effective. The primary uses of the information collected from Users by NICHD will be to:
There is no plan to publish the data collected under this request.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 142.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Library of Medicine (NLM), National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
NLM has become an international leader in health informatics research and development, especially in consumer health informatics. As a result, NLM needs to remain contemporary in consumer health informatics research by utilizing research methods that yield a better understanding of the predictors of consumer satisfaction. Without ongoing insights into the predictors of consumer satisfaction, NLM will lack the research findings to make evidence-based changes in the content, design and editorial management of its consumer Web sites and will not optimally serve the public.
Public libraries have been identified as a key resource for public information about the Patient Protection and Affordable Care Act (PPACA), which took full effect on October 1, 2013. A national anonymous survey of library staff will help us better understand the challenges and successes of information provision in this critical area of high information need. Research and funding into the challenges of health information in public libraries is, at present, almost nonexistent. In the present environment of health insurance reform and presumption of informed consumer choice, this is a critical knowledge gap. Information collection from library workers will supply much-needed feedback on the specific areas of challenge for information provision by public libraries. The results of this study will be used by the Principal Investigators' home institutions—the University of Wisconsin-Madison, an institution of higher education preparing future library workers, and the Specialized Information Services division of the National Library of Medicine—to inform preparation of outreach and training materials as well as advising other organizations and institutions providing PPACA information provision assistance to public libraries (
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 390.
U.S. Customs and Border Protection, Department of Homeland Security
60-Day Notice and request for comments; extension of an existing 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: Application for Identification Card (CBP Form 3078). CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before December 29, 2015 to be assured of consideration.
Written comments may be mailed to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229–1177.
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.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13). The comments should address: (a) Whether the 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 estimates 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 including the use of automated collection techniques or the use of other forms of information technology; and (e) the annual cost burden to respondents or record keepers from the collection of information (total capital/startup costs and operations and maintenance costs). The comments that are submitted will be summarized and included in the CBP request for OMB approval. All comments will become a matter of public record. In this document, CBP is soliciting comments concerning the following information collection:
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of South Carolina (FEMA–4241–DR), dated October 5, 2015, and related determinations.
Dean Webster, Office of Response and
The notice of a major disaster declaration for the State of South Carolina is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 5, 2015.
Aiken and Dillon Counties for Public Assistance.
Calhoun and Greenwood Counties for Public Assistance (already designated for Individual Assistance).
Charleston and Lexington Counties for Public Assistance (Categories C–G)(already designated for Individual Assistance and debris removal and emergency protective measures [Categories A and B], including direct federal assistance, under the Public Assistance program).
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of December 2, 2015 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
I. Watershed-based studies:
II. Non-watershed-based studies:
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Washington (FEMA–4243–DR), dated October 20, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
Notice is hereby given that, in a letter dated October 20, 2015, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Washington resulting from wildfires and mudslides during the period of August 9 to September 10, 2015, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Thomas J. Dargan, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following areas of the State of Washington have been designated as adversely affected by this major disaster:
Chelan, Ferry, Lincoln, Okanogan, Pend Oreille, Stevens, Whatcom, and Yakima Counties and the Confederated Tribes of the Colville Reservation for Public Assistance.
All areas within the State of Washington are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before January 28, 2016.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA–B–1540 to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. For communities with multiple ongoing Preliminary studies, the studies can be identified by the unique project number and Preliminary FIRM date listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
I. Non-Watershed-Based Studies
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of November 4, 2015 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
I. Non-watershed-based studies:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B–17, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301) 443–2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
This notice announces the availability of the Delta Research Station Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for public review and comment. The Draft EIR/EIS evaluates impacts regarding construction and operation of the Delta Research Station (DRS) in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (Bay-Delta), California. The planned DRS would consist of two facilities, a proposed Estuarine Research Station (ERS) and Fish Technology Center (FTC). The U.S. Fish and Wildlife Service (USFWS) is the lead Federal agency responsible for coordinating the environmental analysis for the proposed action under the National Environmental Policy Act (NEPA). The California Department of Water Resources (DWR) is the lead State agency responsible for coordinating the environmental analysis under the California Environmental Quality Act (CEQA).
Comments on the Draft EIR/EIS must be received or postmarked by 5 p.m. Pacific Time on December 14, 2015. Two public meetings will be held to receive comments on the Draft EIR/EIS. See the
To view or download the Draft EIR/EIS, or for a list of locations to view hard-bound copies, go to
You may submit written comments by one of the following methods:
1. By email: Submit comments to
2. By hard-copy: Submit comments by U.S. mail or by hand-delivery, to USFWS, Attn: Barbara Beggs, 650 Capitol Mall Suite 8–300, Sacramento, CA 95814.
For how to view comments on the EIS from the Environmental Protection Agency (EPA), or for information on EPA's role in the EIS process, see EPA's Role in the EIS Process under
Barbara Beggs, USFWS, at 916–930–5603.
With this notice, we continue the process for developing a DRS, which we began by publishing a notice of intent for scoping in the
The proposed DRS would consolidate ongoing Interagency Ecological Program (IEP) research and monitoring activities throughout the Bay-Delta and provide facilities for study and production of endangered Delta fishes. Currently, the IEP has approximately 145 State and Federal employees who conduct research throughout the Bay-Delta. The IEP collaboratively monitors, researches, models, and synthesizes critical information for adaptive management water project operations, planning, and regulatory purposes relative to the aquatic ecosystem in the Bay-Delta. USFWS and DWR plan to construct the DRS in a centrally located area within the Bay-Delta, and the facilities are expected to enhance interagency coordination and collaboration.
The purpose of the DRS is to enhance interagency coordination and collaboration by developing a shared research facility. Currently, Federal and State agency staff working on similar Bay-Delta issues are distributed among different locations that are often remote from the Bay-Delta. Construction and operation of the DRS would reduce travel times and costs and improve research and monitoring activity efficiency. The ERS would consolidate existing IEP programs currently located throughout the Delta, and the FTC would house a new program to develop and apply captive fish propagation technologies in support of population restoration.
The specific objectives of each component of the DRS are as follows:
ERS—
FTC—
Two alternative locations are evaluated in the Draft EIR/EIS: The Rio Vista Army Reserve Center (RVARC) site in the City of Rio Vista and a site located at 845 Ryde Avenue in the City of Stockton (Ryde Avenue site).
The Draft EIR/EIS analyzes three action alternatives, as well as the No Project Alternative.
The No Project Alternative would be a continuation of existing conditions.
For the action alternatives, certain components would be the same for all alternatives. For the ERS, these include provision of office space; boat storage facilities, including a marina; a boat/equipment wash facility; laboratory facilities; shop space; and a storage building. For the FTC, common components include three buildings with aquaculture and research components for the study of individual fish species; an office and administrative building; a shop and vehicle storage building; a surface water intake and groundwater wells, a surface water treatment facility, and an effluent treatment system.
As required by NEPA, the Draft EIR/EIS identifies direct, indirect, and cumulative effects, and possible mitigation for those effects, on biological resources, land use, air quality, water resources, socioeconomics, environmental justice, cultural resources, and other environmental resources that could occur with implementation of each alternative. A summary of each alternative is provided below.
We are conducting environmental review in accordance with the requirements of NEPA, as amended (42 U.S.C. 4321
The EPA is charged under section 309 of the Clean Air Act to review all Federal agencies' EISs and to comment on the adequacy and the acceptability of the environmental impacts of proposed actions in the EISs.
EPA also serves as the repository (EIS database) for EISs prepared by Federal agencies and provides notice of their availability in the
For more information, see
Two public meetings will be held to provide an overview of the project and allow public comment and discussion. Meeting dates, times, and locations will be announced in local media and at
This notice is provided pursuant to NEPA. Submitting timely comments to the email and hard-copy addresses identified in the
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 may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The lead agencies will compile and review all public comments on the Draft EIR/EIS submitted to them prior to preparation of a Final EIR/EIS.
Fish and Wildlife Service, Interior.
Notice of availability; final comprehensive conservation plan and environmental impact statement.
We, the U.S. Fish and Wildlife Service (Service), announce the availability for review of our final comprehensive conservation plan (CCP) and environmental impact statement (EIS) for Monomoy National Wildlife Refuge (NWR). The CCP/EIS describes how we propose to manage the refuge for the next 15 years.
We will sign a record of decision (ROD) no sooner than 30 days after the publication of this notice.
You may view or obtain copies of the final CCP/EIS by any of the following methods. You may also request a hard copy or a CD–ROM.
To view comments on the final CCP/EIS from the Environmental Protection Agency (EPA), or for information on EPA's role in the EIS process, see EPA's Role in the EIS Process under
Matthew Hillman, Refuge Manager, 508–945–0594, ext. 11 (phone);
With this notice, we continue the CCP process for Monomoy NWR, which officially began on February 24, 1999, when we published a
On April 10, 2014, we announced the release of the draft CCP/EIS to the public and requested comments in a notice of availability (NOA) in the
The EPA is charged under Section 309 of the CAA to review all Federal agencies' EISs and to comment on the adequacy and the acceptability of the environmental impacts of proposed actions in the EISs.
EPA also serves as the repository (EIS database) for EISs prepared by Federal agencies and provides notice of their availability in the
A NOA is published at the start of the 45-day public comment period for draft EISs, as well as at the start of the 30-day “wait period” for final EISs. With final EISs, agencies are generally required to wait 30 days before making a decision on a proposed action. For more information, see
This notice announces the availability of the final CCP/EIS for Monomoy NWR in accordance with the National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)). The final CCP/EIS includes a detailed description of the three management alternatives we considered to guide us in managing and administering the refuge for the next 15 years. The document also contains a thorough analysis of impacts predicted from implementing each of the alternatives on the surrounding natural and human environments. We propose that alternative B, the Service-preferred alternative, serve as the foundation for the final, stand-alone CCP. We highlight the modifications we made to alternative B between the draft and final CCP/EIS in Comments, below.
Our next planning step is to complete a ROD no sooner than 30 days after publication of this notice (40 CFR 1506.10(b)(2)).
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd–668ee) (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each NWR. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and goals and contributing to the mission of the National Wildlife Refuge System (NWRS). CCPs should be consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies, as well as respond to key issues and public concerns. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years, in accordance with the Refuge Administration Act.
In 1944, Monomoy NWR was established under the authority of the
During the scoping phase of the planning process, we identified a variety of major issues based on input from the public, State or Federal agencies, other Service programs, and our planning team. These issues included the present location of the refuge boundary and the extent of Service jurisdiction for regulating fishing (shellfishing, sport fishing, and commercial open water fishing), management of natural and wilderness resources, where to allow public access, the refuge's relationship with neighbors and the local community, and identifying compatible recreational and other public uses. We developed refuge management alternatives to address community concerns; achieve refuge goals, objectives, and purposes; and support the NWRS mission. Our draft CCP/EIS (79 FR 19920) and final CCP/EIS fully analyze three alternatives for the future management of the refuge: (1) Alternative A, Current Management; (2) Alternative B, Enhanced Management of Habitat and Public Uses (Service-preferred alternative); and (3) Alternative C, Natural Processes. Alternative A satisfies the NEPA requirement of a “No Action” alternative. Both the draft and final plans identify alternative B as the Service-preferred alternative. Please refer to the final CCP/EIS for more details on each of the alternatives.
We solicited comments on the draft CCP/EIS for Monomoy NWR from April 10, 2014, to October 10, 2014 (79 FR 19920; 79 FR 36554). During the comment period, we received 255 separate written responses and 39 oral comments from the public hearings. Of the 255 written comments, 41 were the same form letter. We also received two petitions: one signed by approximately 650 individuals (Petition A) and the other by approximately 1,576 individuals (Petition B). We also held one public hearing and five refuge open houses to answer questions about the draft CCP/EIS and collect oral and written comments. We evaluated all of the substantive comments we received, and include a summary of those comments, and our responses to them, as appendix K in the final CCP/EIS.
After considering the comments we received on our draft CCP/EIS, we have made several modifications to alternative B in the final plan, including adding or revising several management strategies. Below we present a brief overview of these changes; a full description of the changes is included in appendix K in the final CCP/EIS.
• In June 2015, we signed a new Memorandum of Understanding (see appendix L in the final CCP/EIS) with the town of Chatham (Town) Board of Selectman that administratively determines a management boundary line on Nauset/South Beach. To the east of the boundary line, the Town will manage lands; to the west of the boundary line, the refuge will manage lands. The agreement will be in effect for the next 15 years and has been incorporated into alternative B of the final CCP/EIS.
• We have changed our position on fin fishing with bottom disturbing gear, and use of fish weirs, and do not plan to add regulations to their use within the refuge boundary at this time as existing Federal, State, and Town regulations are adequate to protect refuge resources.
• We have changed our position on prohibiting shellfishing with mechanized equipment below MLW for softshell clams, scallops, quahogs, and sea clams and do not plan to add regulations to their use within the refuge boundary at this time as existing State and Town regulations are adequate to protect refuge resources. Above MLW, refuge regulations will continue to allow only hand-harvest of shellfish; but no salting or use of wheeled carts would be allowed. We would continue to not allow horseshoe crab and mussel harvesting across refuge lands and waters because of their importance as a food resource for migratory birds.
• We re-examined our position on dog walking and will continue to allow dogs on leash on Morris Island, from September 16 through April 30 only. This is consistent with Town regulations and is a time period when less wildlife is found on the Morris Island part of the refuge. We will not allow dogs on any other sections of the refuge at any time of the year.
• We have changed our position about the placement of boat moorings and will allow conservation boat moorings within the refuge boundary under certain stipulations. We will evaluate requests on a case-by-case basis to determine their appropriateness and compatibility.
Alternative B, with these changes, is still our preferred alternative in the final CCP/EIS for Monomoy NWR for several reasons. First, alternative B comprises a mix of actions that, in our professional judgment, work best towards achieving the refuge's purposes, vision, and goals, NWRS policies, and the goals of other State and Regional conservation plans. Second, we also believe that alternative B most effectively addresses key issues raised during the planning process.
In addition to any one method in
• Eldredge Public Library, 564 Main Street, Chatham, MA 02633 Telephone number: 508–945–5170.
We will document the final decision in a ROD, which will be published in the
Fish and Wildlife Service, Interior.
Notice of meetings.
The North American Wetlands Conservation Council (Council) will meet to select North American Wetlands Conservation Act (NAWCA) grant proposals for recommendation to the Migratory Bird Conservation Commission (Commission). This meeting is open to the public. The Advisory Group for the Neotropical Migratory Bird Conservation Act (NMBCA) grants program (Advisory Group) also will meet. This meeting is also open to the public, and interested persons may present oral or written statements.
The Council and Advisory Group meetings will take place at Francis Marion Hotel, 387 King Street, Charleston, South Carolina 29403.
Sarah Mott, Council Coordinator, by phone at 703–358–1784; by email at
The North American Wetlands Conservation Council (Council) will meet to select North American Wetlands Conservation Act (NAWCA) grant proposals for recommendation to the Migratory Bird Conservation Commission (Commission). This meeting is open to the public. The Advisory Group for the Neotropical Migratory Bird Conservation Act (NMBCA) grants program (Advisory Group) also will meet. This meeting is also open to the public, and interested persons may present oral or written statements.
In accordance with NAWCA (Pub. L. 101–233, 103 Stat. 1968, December 13, 1989, as amended), the State-private-Federal Council meets to consider wetland acquisition, restoration, enhancement, and management projects for recommendation to, and final funding approval by, the Commission.
The North American Wetlands Conservation Act of 1989 provides matching grants to organizations and individuals who have developed partnerships to carry out wetlands conservation projects in the United States, Canada, and Mexico. These projects must involve long-term protection, restoration, and/or enhancement of wetlands and associated uplands habitats for the benefit of all wetlands-associated migratory birds. Project proposal due dates, application instructions, and eligibility requirements are available on the NAWCA Web site at
In accordance with NMBCA (Pub. L. 106–247, 114 Stat. 593, July 20, 2000), the Advisory Group will hold its meeting to discuss the strategic direction and management of the NMBCA program and provide advice to the Director of the Fish and Wildlife Service.
The Neotropical Migratory Bird Conservation Act of 2000 promotes long-term conservation of Neotropical migratory birds and their habitats through a competitive grants program by promoting partnerships, encouraging local conservation efforts, and achieving habitat protection in 36 countries. The goals of the Neotropical Migratory Bird Conservation Act include perpetuating healthy bird populations, providing financial resources for bird conservation, and fostering international cooperation. Because the greatest need is south of the U.S. border, at least 75 percent of NMBCA funding supports projects outside the United States.
Project proposal due dates, application instructions, and eligibility requirements are available on the NMBCA Web site at
Interested members of the public may submit relevant information or questions to be consider during the public meetings. If you wish to submit a written statement, so that the information may be made available to the Council or Advisory Group for their consideration prior to the meetings, you must contact the Council Coordinator by the date in Public Input. Written statements must be supplied to the Council Coordinator in both of the following formats: One hard copy with original signature, and one electronic copy via email (acceptable file formats are Adobe Acrobat PDF, MS Word, MS PowerPoint, or rich text file).
Individuals or groups requesting to make an oral presentation at the meetings will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator by the date above, in writing (preferably via email; see
Summary minutes of the Council and Advisory Group meetings will be maintained by the Council Coordinator at the address under
U.S. Geological Survey (USGS), Interior.
Notice of a new information collection: Assessment of Effects of Climate on Waterfowl.
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act (PRA) 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.
To ensure that your comments are considered, we must receive them on or before December 29, 2015.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); (703) 648–7197 (fax); or
Brad Griffith, Leader, USGS, Alaska Cooperative Fish and Wildlife Research Unit at (907) 474–5067 or
The USGS National Climate Change and Wildlife Science Center coordinates the research activities of 8 Regional Climate Science Centers. To increase efficiency of investigations, the relevance of research topics and the effectiveness of research it is critical to identify the types of information that are most critical for the development of a focused and integrated multi-regional research program. This is particularly true for wildlife species that migrate (
We are soliciting comments as to: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that the comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment, including your personally identifiable information, may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public view, we
National Park Service, Interior.
Notice; request for comments.
We (National Park Service, NPS) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. The National Park Service (NPS) sponsors public surveys to provide park managers with information needed for park planning, management, operations and evaluation of performance related to protecting park resources and meeting the needs of the public. In consultation with the Office of Management and Budget (OMB) and the Department of the Interior (DOI), the NPS has developed a Programmatic Clearance Process for NPS-sponsored public surveys. It significantly streamlines the information collection review process. To comply with 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 ICR.
You must submit comments on or before November 30, 2015.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB—OIRA at (202) 395–5806 (fax) or
The Programmatic Clearance for NPS-Sponsored Public Surveys applies to surveys designed to furnish usable information to NPS managers and planners concerning park visitors, visitor services, potential park visitors, and residents of communities near parks. This information is intended to provide NPS managers with data that can be used to improve the quality and utility of agency programs, services, and planning efforts. Questions asked under the programmatic review process must show a clear tie to NPS management and planning needs. The programmatic review may only be used for non-controversial surveys that are unlikely to attract or include topics of significant public interest in the programmatic review process.
To qualify for the NPS generic programmatic review process, all information collections must be directly tied to an area managed by the NPS or research that will benefit NPS management efforts. All collections must be reviewed by the NPS and approved by OMB before the survey can be initiated.
On May 29, 2015, a 60-day
We again invite comments concerning this information collection request 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
Bureau of Reclamation, Interior.
Notice of intent.
The Bureau of Reclamation, the lead Federal agency, and the Sacramento Regional County Sanitation District (Regional San), the lead state agency, will prepare a joint Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for the South County Ag Water Recycling Program (Project). The Project would deliver approximately 45,000 acre-feet per year of Title 22 disinfected tertiary treated recycled water to about 16,000 acres of irrigated lands in southern Sacramento County for agricultural and urban landscape uses and to the Stone Lakes National Wildlife Refuge. The Project could also provide an additional 5,000 acre-feet per year of recycled water for groundwater recharge, for a total recycled water delivery of 50,000 acre-feet per year.
Submit written comments on the scope of the EIR/EIS by November 30, 2015.
Send written comments on the scope of the EIR/EIS to Mr. Jose Ramirez, Project Manager, Sacramento County Regional Sanitation District (Regional San), 10060 Goethe Road, Sacramento, California 95827; or by email to
Mr. Jose Ramirez, Regional San at (916) 879–6059, email at
The Project water comes from the Regional San Sacramento Regional Water Treatment Plant (SRWTP) located in Elk Grove, California. Presently, the SRWTP treats and discharges secondary effluent into the Sacramento River and operates a 5-million-gallon-per-day (mgd) Water Recycling Facility to produce tertiary effluent. In December 2010, the Central Valley Regional Water Quality Control Board adopted new Waste Discharge Requirements (WDRs) for Regional San. The new WDRs require treatment upgrades to be operational by December 2023, and have prompted Regional San to evaluate a multitude of technologies to produce up to 181 mgd of Title 22 disinfected tertiary recycled water or `equivalent' quality effluent. Following a pilot study of various technologies, one technology has been selected to treat wastewater to Title 22 disinfected tertiary level, which is suitable for agriculture.
Title 22 disinfected tertiary recycled water generated at the SRWTP would be conveyed to agricultural and urban customers using a new pump station at the SRWTP and through a new network of recycled water pipelines (transmission, distribution, and laterals) located within public road rights-of-way, private roads, and agricultural land. The proposed Project would also include a potential recharge area to increase recycled water usage and benefit the local groundwater basin through increasing groundwater table levels and recharging the basin; with the potential recharge area, the delivery of recycled water could increase by approximately 5,000 acre-feet per year. In addition, the Project includes provision of recycled water to support wetland habitat at the Stone Lakes National Wildlife Refuge (NWR) to protect the sensitive resources at the refuge during drought conditions.
The average annual recycled water delivered to potential customers is approximately 50,000 acre-feet per year. Recycled water would be delivered to approximately 16,000 acres of irrigated lands (and some limited recharge areas) and to managed wetlands at Stone Lakes NWR. The actual monthly demand would vary seasonally with the maximum demand occurring during the irrigation season, from May through September. The project is designed to deliver up to two-thirds of the maximum month demand during the irrigation season. The remaining demand would be met by groundwater pumping, the existing source of water supply. As treated wastewater would be beneficially reused, there would be a commensurate reduction in the discharge of treated wastewater into the Sacramento River.
The objectives of the proposed Project are as follows:
• Reduce groundwater pumping in the Central Basin by supplying recycled water to agricultural and urban customers in south Sacramento County.
• Minimize conveyance costs while maximizing demand served.
• Improve environmental resources and benefit habitats and ecosystems to
○ Reduce streamflow losses in the Cosumnes River by raising groundwater levels.
○ Support improved riparian habitat along the Cosumnes River as a result of elevated groundwater levels along the stream margins.
○ Provide recycled water to wetlands.
The proposed Project consists of the following proposed project elements and their level of environmental evaluation in the joint EIR/EIS:
• New pump station at the SRWTP (project-level evaluation)
• 30- to 60-inch transmission pipeline from the pump station to Twin Cities Road (project-level evaluation)
• Distribution mainlines from the transmission pipeline and lateral service connections to potential customers (agriculture and Stone Lakes NWR) (program-level evaluation)
• Potential Recharge Area and wells to produce water to the meet the dilution requirements for groundwater recharge (program-level evaluation)
The EIR/EIS will also evaluate the No Project Alternative, an alternative that does not include funding by Reclamation, and a smaller-scale project alternative that would supply less recycled water to a smaller area in South Sacramento County.
Regional San mailed a notice of preparation of a Draft EIR regarding the proposed Project to the public on January 30, 2015 and held a scoping meeting on February 18, 2015 at the Sacramento Farm Bureau in Elk Grove, California.
Before including your address, phone number, email address, or other
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on September 25, 2015, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Varian Medical Systems, Inc. of Palo Alto, California and Varian Medical Systems International AG of Switzerland. Supplements were filed on October 13, 2015. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain radiotherapy systems and treatment planning software, and components thereof by reason of infringement of certain claims of U.S. Patent No. 7,945,021 (“the '021 patent”); U.S. Patent No. 8,116,430 (“the '430 patent”); U.S. Patent No. 8,867,703 (“the '703 patent”); U.S. Patent No. 7,880,154 (“the '154 patent”); U.S. Patent No. 7,906,770 (“the '770 patent”); and U.S. Patent No. 8,696,538 (“the '538 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2015).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain radiotherapy systems and treatment planning software, and components thereof by reason of infringement of one or more of claims 1, 2, 4–9, 11–16, 53–56, and 58–62 of the '021 patent; claims 1–4, 6–10, 12, 18, and 19 of the '430 patent; claims 1–10, 12–15, and 17–21 of the '703 patent; claims 19–28 and 33–36 of the '154 patent; claims 61–63, 65, and 67–70 of the '770 patent; and claims 23, 25, 26, 39–42, 45, and 50 of the '538 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)), instituted this review on May 1, 2015 (80 FR 24973) and determined on August 4, 2015 that it would conduct an expedited review (80 FR 50869, August 21, 2015).
The Commission made this determination pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). It completed and filed its determination in this review on October 27, 2015. The views of the Commission are contained in USITC Publication 4574 (October 2015), entitled
By order of the Commission.
On October 26, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Northern District of Ohio in the lawsuit entitled
In the Complaint, the United States alleges that Cleveland Thermal, LLC, (“Cleveland Thermal”) violated, at a steam generating facility that it owns and operates in Cleveland, Ohio, the Prevention of Significant Deterioration regulations, the Nonattainment New Source Review regulations, and the Standards of Performance for New Stationary Sources, all promulgated under the Clean Air Act, 42 U.S.C. 7401
Under the Consent Decree, Cleveland Thermal will retire all three of its coal-fired boilers; will retire three of its five fuel oil-fired boilers; and will operate its remaining two fuel oil-fired boilers as “limited use” boilers. Cleveland Thermal will install and operate new natural gas-fired boilers to replace the lost capacity. The new natural gas-fired boilers must be properly permitted. In addition, Cleveland Thermal may opt to install and operate a properly permitted new, natural gas-fired cogeneration facility. Cleveland Thermal will pay a civil penalty of $75,000 and perform an environmental mitigation project worth $350,000.
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 $24.75 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $15.50.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) revision titled, “Resource Justification Model,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before November 30, 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–ETA, 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 sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Resource Justification Model (RJM) information collection the ETA uses to collect actual unemployment insurance administrative cost data from a State's accounting records and projected expenditures for upcoming years. A State uses the RJM to submit detailed cost data electronically in a structured format (spreadsheet file). The information specifies salary and benefit rates, workloads, processing times, and non-personal services costs. The ETA uses RJM data to inform administrative funding allocations. ETA regional office data review and validation is also an important RJM component. This information collection has been classified as a revision, because of three (3) changes: (A) Reduced the number of categories of existing Non-Personal Services categories from eight (8) to three (3): (IT/Communications, Non IT and Personal Service Contracts); (B) discontinued the requirement to submit hard copy note books containing the supporting documentation; and (C) added a requirement to the breakout of Personal Services/Personal Benefits of IT expenditures. Social Security Act sections 303(a)(1) and (6) authorize 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.
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,
National Endowment for the Humanities, National Foundation On the Arts and The Humanities.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the Federal Council on the Arts and the Humanities will hold a meeting of the Arts and Artifacts International Indemnity Panel.
The meeting will be held on Wednesday, November 18, 2015, from 12:00 p.m. to 5:00 p.m.
The meeting will be held by teleconference originating at the National Endowment for the Arts, Washington, DC 20506.
Lisette Voyatzis, Committee Management Officer, 400 7th Street SW., Room 4060, Washington, DC 20506; (202) 606–8322;
The purpose of the meeting is for panel review, discussion, evaluation, and recommendation on applications for Certificates of Indemnity submitted to the Federal Council on the Arts and the Humanities, for exhibitions beginning on or after January 1, 2016. Because the meeting will consider proprietary financial and commercial data provided in confidence by indemnity applicants, and material that is likely to disclose trade secrets or other privileged or confidential information, and because it is important to keep the values of
National Endowment for the Humanities.
Notice of Meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given that the National Council on the Humanities will meet to advise the Chairman of the National Endowment for the Humanities (NEH) with respect to policies, programs and procedures for carrying out his functions; to review applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965 and make recommendations thereon to the Chairman; and to consider gifts offered to NEH and make recommendations thereon to the Chairman.
The meeting will be held on Thursday, November 19, 2015, from 10:30 a.m. until 12:30 p.m., and Friday, November 20, 2015, from 9:00 a.m. until adjourned.
The meeting will be held at Constitution Center, 400 7th Street, SW., Washington, DC 20506. See
Lisette Voyatzis, Committee Management Officer, 400 7th Street SW., 4th Floor, Washington, DC 20506; (202) 606–8322;
The National Council on the Humanities is meeting pursuant to the National Foundation on the Arts and Humanities Act of 1965 (20 U.S.C. 951–960, as amended). The Committee meetings of the National Council on the Humanities will be held on November 19, 2015, as follows: The policy discussion session (open to the public) will convene at 10:30 a.m. until approximately 11:30 a.m., followed by the discussion of specific grant applications and programs before the Council (closed to the public) from 11:30 a.m. until 12:30 p.m.
The plenary session of the National Council on the Humanities will convene on November 20, 2015, at 9:00 a.m. in the Conference Center at Constitution Center. The agenda for the morning session (open to the public) will be as follows:
The remainder of the plenary session will be for consideration of specific applications and therefore will be closed to the public.
As identified above, portions of the meeting of the National Council on the Humanities will be closed to the public pursuant to sections 552b(c)(4), 552b(c)(6) and 552b(c)(9)(b) of Title 5 U.S.C., as amended. The closed sessions will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, and discussion of certain information, the premature disclosure of which could significantly frustrate implementation of proposed agency action. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated July 19, 1993.
Please note that individuals planning to attend the public sessions of the meeting are subject to security screening procedures. If you wish to attend any of the public sessions, please inform NEH as soon as possible by contacting Ms. Katherine Griffin at (202) 606–8322 or
The National Science Board's Committee on Strategy and Budget, Subcommittee on Facilities (SCF), pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Monday, November 2, 2015 at 1:00 to 2:00 p.m. EST. Open session: 1:00 to 1:30 p.m.; closed session: 1:30 to 2:00 p.m.
Open meeting subjects: Chairman's remarks; approval of the 2014 Annual Portfolio Review; and discussion of SCF role, processes and charge. Closed meeting subject: Review of May/June and July/August 2015 large facilities status reports.
Partly open, partly closed.
This meeting will be held by teleconference. A public listening line will be available for the open portion of the meeting. Members of the public must contact the Board Office [call 703–292–7000 or send an email message to
The National Science Board's
Wednesday, November 4, 2015 at 11:30–12:30 p.m. EST.
Committee chair's remarks, discussion of change in committee members; discussion of the nomination submissions and next steps; and update timeline and discuss assignments.
Closed.
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230.
Please refer to the National Science Board Web site (
November 2, 9, 16, 23, 30, December 7, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of November 2, 2015.
There are no meetings scheduled for the week of November 9, 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 November 23, 2015.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of December 7, 2015.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301–415–0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Nuclear Regulatory Commission.
License amendment application; opportunity to request a hearing and to petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) has docketed a license amendment application from Pacific Gas and Electric Company (PG&E). PG&E is requesting a revision to the Technical Specifications utilized at the Diablo Canyon Independent Spent Fuel Storage Installation (ISFSI) located in San Luis Obispo County, California to remove preferential loading references and improve the readability and human factors usage of the Technical Specifications. The NRC is evaluating whether approval of this request would be categorically excluded from the requirement to prepare an environmental assessment.
A request for a hearing or petition for leave to intervene must be filed by December 29, 2015.
Please refer to Docket ID NRC–2015–0233 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Chris Allen, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–6877; email:
The NRC received, by letter dated September 16, 2015, a license amendment application from PG&E, requesting a revision to the Technical Specifications utilized at its Diablo Canyon ISFSI located in San Luis Obispo, California (ADAMS Accession No. ML15259A590). License No. SNM–2511 authorizes the licensee to receive, store, and transfer spent fuel from Diablo Canyon Nuclear Station Units 1 and 2. Specifically, the proposed amendment request seeks to remove preferential loading references and improve the readability and human factors usage of the Technical Specifications.
An NRC administrative completeness review, documented in a letter to PG&E dated September 30, 2015, found the application acceptable to begin a technical review (ADAMS Accession No. ML15275A361). The NRC's Office of Nuclear Materials Safety and Safeguards has docketed this application under docket number 72–26. If the NRC approves the amendment, the approval will be documented in an amendment to NRC License No. SNM–2511. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. These findings will be documented in a safety evaluation report. In the amendment request, PG&E asserted that the proposed amendment satisfies the categorical exclusion criteria of 10 CFR 51.22(c)(11). The NRC will evaluate this assertion and make findings consistent with the National Environmental Policy Act and 10 CFR part 51.
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license or combined license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located in One White Flint North, Room O1–F21 (first floor), 11555 Rockville Pike, Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
If a request for a hearing or petition for leave to intervene is filed within 60 days, the Commission or a presiding officer designated by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel will rule on the request and/or petition. The Secretary or the Chief Administrative Judge of the Atomic Safety and Licensing Board will issue a notice of hearing or an appropriate order.
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion that support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i)–(iii).
A State, local governmental body, Federally-recognized Indian tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by December 29, 2015. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions for
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Persons desiring to make a limited appearance are requested to inform the Secretary of the Commission by December 29, 2015.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Priority Mail Contract 150 negotiated service agreement to the competitive product list. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Request, Attachment B.
To support its Request, the Postal Service filed a copy of the contract, a copy of the Governors' Decision authorizing the product, proposed changes to the Mail Classification Schedule, a Statement of Supporting Justification, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public treatment of certain materials. It also filed supporting financial workpapers.
The Commission establishes Docket Nos. MC2016–11 and CP2016–12 to consider the Request pertaining to the proposed Priority Mail Contract 150 product and the related contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than November 2, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016–11 and CP2016–12 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than November 2, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning a notice of classification change to Country Price Lists for International Mail. 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 October 22, 2015, the Postal Service filed a notice of classification changes under Commission rule 39 CFR 3020.90.
The first of the proposed changes is the creation of a separate country listing for Bonaire, St. Eustatius, and Saba due to a new designated operator for the three islands.
The new country listing also has mailing services and pricing groupings for Priority Mail Express International Flat Rate Envelope and Priority Mail International Flat Rate Envelopes and Boxes that the Postal Service states are in accordance with the competitive price change filed in Docket No. CP2016–9.
The second mail classification change is a revision of the country rate group for International Priority Airmail and International Surface Air Lift service for Curacao and Sint Maarten.
Finally, the third classification change replaces the country name St. Kitts (St. Christopher) & Nevis with Saint Kitts & Nevis.
The Postal Service states that the proposed changes satisfy the requirements of 39 CFR 3020.90 because the changes should result in a more accurate representation of the Postal Service's offerings, the notice is filed more than 15 days prior to the intended effective date, and none of the three parts constitute a material change to the product descriptions.
Pursuant to 39 CFR 3020.91, the Commission has posted the Notice on its Web site and invites comments on whether the Postal Service's filings are consistent with the policies of 39 U.S.C. 3642 and 39 CFR 3020 subpart E. Comments are due no later than November 3, 2015. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints John F. Rosato to represent the interests of the general public (Public Representative) in this docket.
1. The Commission establishes Docket No. MC2016–10 to consider matters raised by the Notice.
2. Pursuant to 39 U.S.C. 505, John F. Rosato is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons are due by November 3, 2015.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to establish procedures and credits in connection with the re-location of equipment in the Exchange's Data Center. 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 operates a data center in Mahwah, New Jersey, from which it provides co-location services to Users.
The Data Center opened in 2010, and at that time, the Exchange represented that it offers co-location space based on availability and that it had sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future.
The Exchange proposes to put the following procedures in place to manage the process for the Migration.
First, the Exchange would identify Users that would be required to move in the Migration based on (a) the current location of the User and its current equipment and power requirements and (b) the availability of another location in the Data Center that would accommodate the equipment and power requirements for which such User currently subscribes. No User would be required to move more than once within any 12-month period.
Second, the Exchange would notify a User in writing (the “Notice”) that the User's equipment and network connections in the Data Center are to be moved as part of the Migration. The Notice would identify the 90-day period during which the User must move its equipment, which period would commence at least 60 days from the date of the Notice. The exact date or dates for the move for each User would be agreed upon between the User and the Exchange. If a move date or dates cannot be agreed on, the Exchange would schedule the move for a date or dates no later than 180 days after the date of the Notice.
Third, each User's move would be facilitated by the Exchange in cooperation with the User, including the un-racking and re-racking of all of the User's equipment, and the re-installation of the User's networking connections, and the Exchange would make reasonable efforts to ensure that the moves take place outside of the Exchange's hours for business.
Fourth, in connection with facilitating each User's move, the Exchange proposes to waive certain fees. Specifically, the Exchange proposes to waive the monthly recurring fees incurred in connection with the User's new space for the month during which the User's move commences. This waiver of the monthly recurring fees would mean that the User would not incur these fees for the period of overlapping use of the equipment and services in the old and the new locations, as long as the move is completed within one month.
In addition, the Exchange proposes to waive all service-related charges that the User would incur if such a move were to take place at a User's request with respect to the User's existing services and equipment. The service-related charges to be waived would be: (a) The Change Fee, Initial Install Services and Hot Hands Services; (b) The External Cabinet Cable Tray fee and the Custom External Cabinet Cable Tray fee, if the User has such equipment installed in its current location; (c) Shipping and Receiving fees relating to duplicate equipment for the User's new space; and (d) the Badge Request Fee and Visitor Security Escort fee with respect to User representative visits during the User's Migration Period (together, the “Service-Related Fees”).
Finally, in consideration for the Migration, the Exchange proposes to waive, for the month following the completion of a User's move, the monthly recurring charges for that User, based on the rate of the monthly recurring fees that the User is paying as of the date of the Notice.
The Exchange proposes to modify the Exchange's Price List to reflect the fee waivers in connection with the Migration.
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change. The representations that the Exchange made in the 2010 Release to the effect that any difference among the positions of a User's equipment within the Data Center does not create any material difference to Users in terms of access to the Exchange continue to apply.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Additionally, the proposed changes would be applied uniformly by the Exchange to comparable Users and would not unfairly discriminate between similarly situated Users of co-location services.
The Exchange believes that the proposal to establish procedures and waive certain fees in connection with the movement of equipment at the Exchange's Data Center would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow the Exchange to have sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future. The Exchange believes that the waiver of overlapping monthly recurring charges, the waiver of the Service-Related Fees, and the waiver of one month of monthly recurring charges is reasonable because Users would be moving at the Exchange's request and the waivers would help to alleviate the burden on the Users that are required to move.
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
For the reasons above, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The 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 establish procedures and credits in connection with the re-location of equipment in the Exchange's Data Center. 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 operates a data center in Mahwah, New Jersey, from which it provides co-location services to Users.
The Data Center opened in 2010, and at that time, the Exchange represented that it offers co-location space based on availability and that it had sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future.
The Exchange proposes to put the following procedures in place to manage the process for the Migration.
First, the Exchange would identify Users that would be required to move in the Migration based on (a) the current location of the User and its current equipment and power requirements and (b) the availability of another location in the Data Center that would accommodate the equipment and power requirements for which such User currently subscribes. No User would be required to move more than once within any 12-month period.
Second, the Exchange would notify a User in writing (the “Notice”) that the User's equipment and network connections in the Data Center are to be moved as part of the Migration. The Notice would identify the 90-day period during which the User must move its equipment, which period would commence at least 60 days from the date of the Notice. The exact date or dates for the move for each User would be agreed upon between the User and the Exchange. If a move date or dates cannot be agreed on, the Exchange would schedule the move for a date or dates no later than 180 days after the date of the Notice.
Third, each User's move would be facilitated by the Exchange in cooperation with the User, including the un-racking and re-racking of all of the User's equipment, and the re-installation of the User's networking connections, and the Exchange would make reasonable efforts to ensure that the moves take place outside of the Exchange's hours for business.
Fourth, in connection with facilitating each User's move, the Exchange proposes to waive certain fees. Specifically, the Exchange proposes to waive the monthly recurring fees incurred in connection with the User's new space for the month during which the User's move commences. This waiver of the monthly recurring fees would mean that the User would not incur these fees for the period of overlapping use of the equipment and services in the old and the new locations, as long as the move is completed within one month.
In addition, the Exchange proposes to waive all service-related charges that the User would incur if such a move were to take place at a User's request with respect to the User's existing services and equipment. The service-related charges to be waived would be: (a) The Change Fee, Initial Install Services and Hot Hands Services; (b) the External Cabinet Cable Tray fee and the Custom External Cabinet Cable Tray fee, if the User has such equipment installed in its current location; (c) Shipping and Receiving fees relating to duplicate equipment for the User's new space; and (d) the Badge Request Fee and Visitor Security Escort fee with respect to User representative visits during the User's Migration Period (together, the “Service-Related Fees”).
Finally, in consideration for the Migration, the Exchange proposes to waive, for the month following the completion of a User's move, the monthly recurring charges for that User, based on the rate of the monthly recurring fees that the User is paying as of the date of the Notice.
The Exchange proposes to modify the NYSE MKT Equities Price List and the NYSE Amex Options Fee Schedule to reflect the fee waivers in connection with the Migration.
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change. The representations that the Exchange made in the 2010 Release to the effect that any difference among the positions of a User's equipment within the Data Center does not create any material difference to Users in terms of access to the Exchange continue to apply.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Additionally, the proposed changes would be applied uniformly by the Exchange to comparable Users and would not unfairly discriminate between similarly situated Users of co-location services.
The Exchange believes that the proposal to establish procedures and waive certain fees in connection with the movement of equipment at the Exchange's Data Center would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow the Exchange to have sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future. The Exchange believes that the waiver of overlapping monthly recurring charges, the waiver of the Service-Related Fees, and the waiver of one month of monthly recurring charges is reasonable because Users would be moving at the Exchange's request and the waivers would help to alleviate the burden on the Users that are required to move.
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
For the reasons above, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The 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) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Options Pricing at Chapter XV to adopt a new Section 13, entitled “Testing Facilities” which describes fees in connection with the use of the Testing Facility (“NTF”) test environment located in Carteret, New Jersey.
While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative on October 26, 2015.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to amend its Options Pricing at Chapter XV to adopt a new Section 13, entitled “Testing Facilities” to establish fees to subscribe for testing. Currently, Options Participants may test in a virtual trading environment for purposes of testing in Ashburn, Virginia (“Ashburn”), at no cost. The NTF provides subscribers a virtual System environment for testing upcoming Nasdaq releases and product enhancements, as well as testing firm software prior to implementation. The test environment closely approximates the production environment to enable subscribers to test their automated systems that integrate with the Exchange.
The Exchange is moving the options test environment from the Ashburn location to Carteret, NJ (“Carteret”), which is also the location of Nasdaq's primary trading System. While Options Participants will be able to continue to utilize the Ashburn facility at no cost until that facility is no longer in use, Options Participants will be able to subscribe to the Carteret test facility for future testing.
The relatively large distance between the Ashburn Testing Facility and the majority of Nasdaq firms results in expensive connectivity costs for customers that connect via telecommunication providers. As a consequence, a large majority of member firms do not connect to Ashburn for NTF connectivity. In an effort to improve the utility of the NTF, Nasdaq is developing a test environment located in Carteret that will provide the same functionality as the testing functionality of Ashburn, yet more closely approximate the live trading environment due to its proximity to the System and upgraded hardware. In particular, the Carteret test environment will take advantage of technology upgrades Nasdaq is making to its trading-related systems. Unlike the Ashburn test environment, the Carteret test environment will provide dedicated connectivity to the facility via a cross-connection to either a member firm's direct connection router in Carteret or its co-location cabinet.
Nasdaq notes that, because the Carteret facility also houses the System, subscribers to the Carteret test environment will no longer need to pay for third party connectivity to Ashburn,
The connectivity provided under this rule also provides connectivity to the other test environments of NASDAQ OMX PHLX LLC and NASDAQ OMX BX, Inc. Additionally, the connectivity may be utilized for either equities or options testing. If for example a Phlx [sic] member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
Notwithstanding the foregoing, Nasdaq will also continue to offer certain limited testing capabilities free of charge at Carteret. Options Participants that connect to Cartert's [sic] NTF through a virtual private network (“VPN”) through the internet for site-to-site limited order routing
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed fees are equitably allocated because all Options Participants desiring to connect to the Carteret test environment will be assessed a uniform fee for those services. The Exchange believes that offering subscribers the option to subscribe to either 1Gb or 10Gb for the same fee is an equitable allocation because, unlike the live trading environment, there is no competitive advantage to possessing a higher capacity switch port in the test environment. The test environment is designed to closely mirror the live trading environment for Options Participants, including matching the capacity of each Options Participant's live environment switch port. In the absence of any competitive advantage, charging a uniform fee for both 1Gb and 10Gb switch ports is an equitable allocation of fees. Nasdaq believes that charging a uniform fee will encourage member firms to subscribe to Carteret, and further encourage those that subscribe to use the same hardware as is used by them for connectivity to the live trading environment.
The proposed fees are reasonable because they are designed to cover the costs incurred by the Exchange to develop the test facility and the costs incurred by the Exchange to continue to offer the test environment. The proposed fee should allow the Exchange to recoup these costs and also make a profit, while providing Options Participants with a superior test environment that more closely mirrors that of the live trading environment on the Exchange. Nasdaq believes that offering both 1Gb and 10Gb connectivity for the same fee is reasonable as the increased incremental cost it incurs by offering the 10Gb switch port at the lower fee is outweighed by the benefit all subscribers will receive if Options Participants use hardware identical to what they use in the live trading environment, hence furthering the goal of creating a test environment that closely mirrors the live trading environment.
Further, the connectivity provided under this rule also provides connectivity to the other test environments of NASDAQ OMX PHLX LLC and NASDAQ OMX BX, Inc. This connectivity may be utilized for either equities or options testing. If for example a Nasdaq member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act
Finally, the Exchange will continue to offer Options Participants certain limited testing capabilities free of charge at Carteret through VPN. While this feature offers limited capability in terms of functionality, the Exchange continues to offer a free of charge alternative to Options Participants desiring to utilize the NTF.
Nasdaq does not believe that the proposed rule change will result in any intra-market or inter-market burdens on competition that are not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed fees for access to the Carteret test environment more closely approximate the live trading environment, subscribing member firms will be able to more accurately test their trading systems and avoid potentially disruptive system failures in the live trading environment. Despite the fee that will now be assessed to Options Participants for testing, the Exchange believes that Options Participants utilizing this service will benefit from the move to Carteret because the test environment is designed to closely mirror the live trading environment for Options Participants, including matching the capacity of each Options Participant's live environment switch port. Subscribing to the test facility is optional.
Also, the connectivity provided under this rule also provides connectivity to the other test environments of NASDAQ OMX PHLX LLC and NASDAQ OMX BX, Inc. Members that are already connected for equities testing would not incur an additional charge. This connectivity may be utilized for either equities or options testing. Finally, subscribing to the test facility is optional.
Additionally, the Exchange does not believe that the move to Carteret and imposition of connectivity fees to the NTF creates an undue burden on competition because the Exchange will continue to offer Options Participants certain limited testing capabilities free of charge at Carteret through VPN.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its Options Pricing at Chapter XV to adopt a new Section 9, entitled “Testing Facilities” which describes fees in connection with the use of the Testing Facility (“NTF”) test environment located in Carteret, New Jersey.
While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative on October 26, 2015.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BX proposes to amend its Options Pricing at Chapter XV to adopt a new Section 9, entitled “Testing Facilities” to establish fees to subscribe for testing. Currently, Options Participants may test in a virtual trading environment for purposes of testing in Ashburn, Virginia (“Ashburn”), at no cost. The NTF provides subscribers a virtual System environment for testing upcoming BX releases and product enhancements, as well as testing firm software prior to implementation. The test environment closely approximates the production environment to enable subscribers to test their automated systems that integrate with the Exchange.
The Exchange is moving the options test environment from the Ashburn location to Carteret, NJ (“Carteret”), which is also the location of BX's primary trading System. While Options Participants will be able to continue to utilize the Ashburn facility at no cost until that facility is no longer in use, Options Participants will be able to subscribe to the Carteret test facility for future testing.
The relatively large distance between the Ashburn Testing Facility and the majority of BX firms results in expensive connectivity costs for customers that connect via
BX notes that, because the Carteret facility also houses the System, subscribers to the Carteret test environment will no longer need to pay for third party connectivity to Ashburn,
The connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX PHLX LLC. Additionally, the connectivity may be utilized for either equities or options testing. If for example a BX member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
Notwithstanding the foregoing, BX will also continue to offer certain limited testing capabilities free of charge at Carteret. Options Participants that connect to Cartert's [sic] NTF through a virtual private network (“VPN”) through the internet for site-to-site limited order routing capability only will not be assessed a fee.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed fees are equitably allocated because all Options Participants desiring to connect to the Carteret test environment will be assessed a uniform fee for those services. The Exchange believes that offering subscribers the option to subscribe to either 1Gb or 10Gb for the same fee is an equitable allocation because, unlike the live trading environment, there is no competitive advantage to possessing a higher capacity switch port in the test environment. The test environment is designed to closely mirror the live trading environment for Options Participants, including matching the capacity of each Options Participant's live environment switch port. In the absence of any competitive advantage, charging a uniform fee for both 1Gb and 10Gb switch ports is an equitable allocation of fees. BX believes that charging a uniform fee will encourage member firms to subscribe to Carteret, and further encourage those that subscribe to use the same hardware as is used by them for connectivity to the live trading environment.
The proposed fees are reasonable because they are designed to cover the costs incurred by the Exchange to develop the test facility and the costs incurred by the Exchange to continue to offer the test environment. The proposed fee should allow the Exchange to recoup these costs and also make a profit, while providing Options Participants with a superior test environment that more closely mirrors that of the live trading environment on the Exchange. BX believes that offering both 1Gb and 10Gb connectivity for the same fee is reasonable as the increased incremental cost it incurs by offering the 10Gb switch port at the lower fee is outweighed by the benefit all subscribers will receive if Options Participants use hardware identical to what they use in the live trading environment, hence furthering the goal of creating a test environment that closely mirrors the live trading environment.
Further, the connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX PHLX LLC. This connectivity may be utilized for either equities or options testing. If for example a BX member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act
Finally, the Exchange will continue to offer Options Participants certain limited testing capabilities free of charge at Carteret through VPN. While this feature offers limited capability in terms of functionality, the Exchange continues to offer a free of charge alternative to Options Participants desiring to utilize the NTF.
BX does not believe that the proposed rule change will result in any intra-market or inter-market burdens on competition that are not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed fees for access to the Carteret test environment more closely approximate the live trading environment, subscribing member firms will be able to more accurately test their trading systems and avoid potentially disruptive system failures in the live trading environment. Despite the fee that will now be assessed to Options Participants for testing, the Exchange believes that Options Participants utilizing this service will benefit from the move to Carteret because the test environment is designed to closely mirror the live trading environment for Options Participants, including matching the capacity of each Options Participant's live environment switch port. Subscribing to the test facility is optional.
Also, the connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX PHLX LLC. Members that are already connected for equities testing would not incur an additional charge. This connectivity may be utilized for either equities or options testing. Finally, subscribing to the test facility is optional.
Additionally, the Exchange does not believe that the move to Carteret and imposition of connectivity fees to the NTF creates an undue burden on competition because the Exchange will continue to offer Options Participants certain limited testing capabilities free of charge at Carteret through VPN.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 7, 2015, NYSE Arca, Inc. (the “Exchange” or “Arca”) 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 adopt new equity trading rules relating to the implementation of Pillar, the Exchange's new trading technology platform. The Exchange proposes to adopt two new Pillar rules: 1) NYSE Arca Equities Rule 7.31P (“Rule 7.31P”) related to orders and modifiers; and 2) NYSE Arca Equities Rule 7.44P (“Rule 7.44P”) related to the Retail Liquidity Program (“RLP”). According to the Exchange, these rules would set forth the RLP for Pillar and describe how orders and modifiers in Pillar would be priced, ranked, traded, and/or routed, using the terminology and priority categories that were approved in the Pillar I Filing.
The Exchange represents that Pillar is an integrated trading technology platform designed to use a single specification for connecting to the equities and options markets operated by Arca and its affiliates, New York Stock Exchange LLC (“NYSE”) and NYSE MKT LLC (“NYSE MKT”).
This filing is the second set of proposed rule changes to support Pillar implementation. As proposed, the new rules governing trading on Pillar would have the same numbering as current rules, but with the modifier “P” appended to the rule number. The Exchange proposes that rules with a “P” modifier would operate for symbols that are trading on the Pillar trading platform. If a symbol is trading on the Pillar trading platform, a rule with the same number as a rule with a “P” modifier would no longer operate for that symbol and the Exchange would announce by Trader Update when symbols are trading on the Pillar trading platform. Definitions that do not have a companion version with a “P” modifier would continue to operate for all symbols.
As described in detail in the Notice, Rules 7.31P, and 7.44P incorporate much of the substance of current NYSE Arca Rules 7.31 and 7.44, respectively. However, with Pillar, the Exchange would introduce new terminology, reorganize and redraft certain provisions to improve clarity, and provide additional detail to other current provisions being redesignated. The Exchange also proposes to make several changes that are more substantive in nature, as follows:
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• In the RLP, Retail Orders may not be designated with a “No Midpoint Execution” Modifier.
• All orders in the RLP would be ranked based on their priority category, pursuant to Rule 7.36P, and would not have different ranking in the Program. Accordingly, odd-lot orders ranked Priority 2—Display Orders would have priority over orders ranked Priority 3—Non-Display Orders, and Limit Non-Displayed Orders would no longer be ranked behind other non-display orders.
• Retail Price Improvement Orders (“RPIs”) would be accepted before the start of Core Trading Hours.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act
The Commission notes that the Exchange believes that the proposed rules would remove impediments to and perfect the mechanism of a free and open market because the proposed rule set would promote transparency by using consistent terminology governing equities trading, and by clearly denoting the rules that govern once a symbol has been migrated to the Pillar platform.
With respect to proposed Rule 7.31P, the Exchange states that it believes that the proposed substantive differences to functionality being proposed for Pillar would remove impediments to and perfect the mechanism of a fair and orderly market for the following reasons:
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With respect to proposed Rule 7.44P, the Commission notes that the Exchange represents that proposed substantive difference to the priority and allocation of orders that trade against Retail Orders in proposed Rule 7.44P(l) would remove impediments to and perfect the mechanism of a fair and orderly market because it would align the priority and allocation of orders in the RLP with the priority and allocation of orders outside of the RLP.
Based on the Exchange's representations, the Commission believes that the proposed rule change does not raise any novel regulatory considerations and should provide greater specificity with respect to the functionality available on the Exchange as symbols are migrated to the Pillar platform. For these reasons, the Commission believes that the proposal should help to prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest.
In Amendment No. 1, the Exchange proposes to delete references to IOC Routable Cross Orders because the Exchange has determined not to offer this order type when it implements Pillar. In Amendment No. 2, the Exchange proposes to: (i) Correct a cross reference in proposed Rule 7.31P(a)(2)(B) from Rule 7.10 to Rule 7.10P; (ii) add a new sentence to proposed Rule 7.31P(b)(2)(A) to specify that an incoming Limit IOC Order with a MTS must be at least a round lot and, if the MTS is larger than the size of the Limit IOC Order, the order would be rejected on arrival; (iii) to add a hard paragraph return between proposed Rule 7.31P(i)(1) and 7.31P(i)(2); and (iv) remove an extraneous reference to “500” in the sixth paragraph in the first example of proposed Rule 7.44P(l).
The Commission believes that the changes proposed in Amendment Nos. 1 and 2 are non-substantive and further clarify the operation of the proposed rules governing Pillar. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment Nos. 1 and 2 are 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”),
The Exchange proposes to amend its Pricing Schedule at Chapter VII to adopt a new Section E, entitled “Testing Facilities” which describes fees in connection with the use of the Testing Facility (“NTF”) test environment located in Carteret, New Jersey.
While the changes proposed herein are effective upon filing, the Exchange has designated that the amendments be operative on October 26, 2015.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for
Phlx proposes to amend its Pricing Schedule at Chapter VII to adopt a new Section E, entitled “Testing Facilities” to establish fees to subscribe for testing. Currently, Options members may test in a virtual trading environment for purposes of testing in Ashburn, Virginia (“Ashburn”), at no cost. The NTF provides subscribers a virtual system environment for testing upcoming Phlx releases and product enhancements, as well as testing firm software prior to implementation. The test environment closely approximates the production environment to enable subscribers to test their automated systems that integrate with the Exchange.
The Exchange is moving the options test environment from the Ashburn location to Carteret, NJ (“Carteret”), which is also the location of Phlx's primary trading System. While Options members will be able to continue to utilize the Ashburn facility at no cost until that facility is no longer in use, Options members will be able to subscribe to the Carteret test facility for future testing.
The relatively large distance between the Ashburn Testing Facility and the majority of Phlx firms results in expensive connectivity costs for customers that connect via telecommunication providers. As a consequence, a large majority of member firms do not connect to Ashburn for NTF connectivity. In an effort to improve the utility of the NTF, Phlx is developing a test environment located in Carteret that will provide the same functionality as the testing functionality of Ashburn, yet more closely approximate the live trading environment due to its proximity to the System and upgraded hardware. In particular, the Carteret test environment will take advantage of technology upgrades Phlx is making to its trading-related systems. Unlike the Ashburn test environment, the Carteret test environment will provide dedicated connectivity to the facility via a cross-connection to either a member firm's direct connection router in Carteret or its co-location cabinet.
Phlx notes that, because the Carteret facility also houses the System, subscribers to the Carteret test environment will no longer need to pay for third party connectivity to Ashburn,
The connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX BX, Inc. Additionally, the connectivity may be utilized for either equities or options testing. If for example a Phlx member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
Notwithstanding the foregoing, Phlx will also continue to offer certain limited testing capabilities free of charge at Carteret. Options members that connect to Cartert's [
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed fees are equitably allocated because all Options members desiring to connect to the Carteret test environment will be assessed a uniform fee for those services. The Exchange believes that offering subscribers the option to subscribe to either 1Gb or 10Gb for the same fee is an equitable allocation because, unlike the live trading environment, there is no competitive advantage to possessing a higher capacity switch port in the test environment. The test environment is designed to closely mirror the live trading environment for Options members, including matching the capacity of each Options member's live environment switch port. In the absence of any competitive advantage, charging a uniform fee for both 1Gb and 10Gb switch ports is an equitable allocation of fees. Phlx believes that charging a uniform fee will encourage member firms to subscribe to Carteret, and further encourage those that subscribe to use the same hardware as is used by them for connectivity to the live trading environment.
The proposed fees are reasonable because they are designed to cover the costs incurred by the Exchange to develop the test facility and the costs incurred by the Exchange to continue to offer the test environment. The proposed fee should allow the Exchange to recoup these costs and also make a profit, while providing Options members with a superior test environment that more closely mirrors that of the live trading environment on the Exchange. Phlx believes that offering both 1Gb and 10Gb connectivity for the same fee is reasonable as the increased incremental cost it incurs by offering the 10Gb switch port at the lower fee is outweighed by the benefit all subscribers will receive if Options members use hardware identical to what they use in the live trading environment, hence furthering the goal of creating a test environment that closely mirrors the live trading environment.
Further, the connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX BX, Inc. This connectivity may be utilized for either equities or options testing. If for example a Phlx member has already paid the $1,000 per hand-off, per month for connection to the Testing Facility in Carteret, there would be no need to pay this fee for options testing.
The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act
Finally, the Exchange will continue to offer Options members certain limited testing capabilities free of charge at Carteret through VPN. While this feature offers limited capability in terms of functionality, the Exchange continues to offer a free of charge alternative to Options Participants [
Phlx does not believe that the proposed rule change will result in any intra-market or inter-market burdens on competition that are not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed fees for access to the Carteret test environment more closely approximate the live trading environment. Subscribing member firms will be able to more accurately test their trading systems and avoid potentially disruptive system failures in the live trading environment. Despite the fee that will now be assessed to Options members for testing, the Exchange believes that Options members utilizing this service will benefit from the move to Carteret because the test environment is designed to closely mirror the live trading environment for Options members, including matching the capacity of each Options member's live environment switch port.
Also, the connectivity provided under this rule also provides connectivity to the other test environments of The NASDAQ Stock Market LLC and NASDAQ OMX BX, Inc. Members that are already connected for equities testing would not incur an additional charge. This connectivity may be utilized for either equities or options testing. Finally, subscribing to the test facility is optional.
Additionally, the Exchange does not believe that the move to Carteret and imposition of connectivity fees to the NTF creates an undue burden on competition because the Exchange will continue to offer Options members certain limited testing capabilities free of charge at Carteret through VPN.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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, 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 establish procedures and credits in connection with the re-location of equipment in the Exchange's Data Center 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 operates a data center in Mahwah, New Jersey, from which it provides co-location services to Users.
The Data Center opened in 2010, and at that time, the Exchange represented that it offers co-location space based on availability and that it had sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future.
The Exchange proposes to put the following procedures in place to manage the process for the Migration.
First, the Exchange would identify Users that would be required to move in the Migration based on (a) the current location of the User and its current equipment and power requirements and (b) the availability of another location in the Data Center that would accommodate the equipment and power requirements for which such User currently subscribes. No User would be required to move more than once within any 12-month period.
Second, the Exchange would notify a User in writing (the “Notice”) that the User's equipment and network connections in the Data Center are to be moved as part of the Migration. The Notice would identify the 90-day period during which the User must move its equipment, which period would commence at least 60 days from the date of the Notice. The exact date or dates for the move for each User would be agreed upon between the User and the Exchange. If a move date or dates cannot be agreed on, the Exchange would schedule the move for a date or dates no later than 180 days after the date of the Notice.
Third, each User's move would be facilitated by the Exchange in cooperation with the User, including the un-racking and re-racking of all of the User's equipment, and the re-installation of the User's networking connections, and the Exchange would make reasonable efforts to ensure that the moves take place outside of the Exchange's hours for business.
Fourth, in connection with facilitating each User's move, the Exchange proposes to waive certain fees. Specifically, the Exchange proposes to waive the monthly recurring fees incurred in connection with the User's new space for the month during which the User's move commences. This waiver of the monthly recurring fees would mean that the User would not incur these fees for the period of overlapping use of the equipment and services in the old and the new locations, as long as the move is completed within one month.
In addition, the Exchange proposes to waive all service-related charges that the User would incur if such a move were to take place at a User's request with respect to the User's existing services and equipment. The service-related charges to be waived would be: (a) The
Finally, in consideration for the Migration, the Exchange proposes to waive, for the month following the completion of a User's move, the monthly recurring charges for that User, based on the rate of the monthly recurring fees that the User is paying as of the date of the Notice.
The Exchange proposes to modify the NYSE Arca Options Fee Schedule and, through its wholly owned subsidiary NYSE Arca Equities, Inc., the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services, to reflect the fee waivers in connection with the Migration.
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change. The representations that the Exchange made in the 2010 Release to the effect that any difference among the positions of a User's equipment within the Data Center does not create any material difference to Users in terms of access to the Exchange continue to apply.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Additionally, the proposed changes would be applied uniformly by the Exchange to comparable Users and would not unfairly discriminate between similarly situated Users of co-location services.
The Exchange believes that the proposal to establish procedures and waive certain fees in connection with the movement of equipment at the Exchange's Data Center would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow the Exchange to have sufficient space in the Data Center to accommodate demand on an equitable basis for the foreseeable future. The Exchange believes that the waiver of overlapping monthly recurring charges, the waiver of the Service-Related Fees, and the waiver of one month of monthly recurring charges is reasonable because Users would be moving at the Exchange's request and the waivers would help to alleviate the burden on the Users that are required to move.
The Exchange also believes that the proposed rule change is consistent with Section 6(b)(4) of the Act,
For the reasons above, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The 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
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 an Administrative declaration of a disaster for the State of Texas dated 10/22/2015.
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 Administrator's disaster declaration, 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 14513 6 and for economic injury is 14514 0.
The State which received an EIDL Declaration # is Texas.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of SOUTH CAROLINA (FEMA–4241–DR), dated 10/15/2015.
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.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of SOUTH CAROLINA, dated 10/15/2015, is
All other information in the original declaration remains unchanged.
60-day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C Chapter 35 requires federal agencies to publish a notice in the
Submit comments on or before December 29, 2015.
Send all comments to Daniel Upham, Chief, Microenterprise Development Division, Office of Capital Access, Small Business Administration, 395 E Street, Patriots Plaza, Washington, DC 20416.
Daniel Upham, Chief, Microenterprise Development Division, Office of Capital Access,
Information collection is needed to ensure that Microloan Program activity meets the statutory goals of assisting mandated target market. The information is used by the reporting participants and the SBA to assist with portfolio management, risk management, loan servicing, oversight and compliance, data management and understanding of short and long term trends and development of outcome measures.
SBA is requesting comments 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.
60-day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C Chapter 35 requires federal agencies to publish a notice in the
Submit comments on or before December 29, 2015.
Send all comments to Brittany Borg, Contracting Officer Representative, Office of Entrepreneurial Development, U.S. Small Business Administration, 409 3rd Street, Room 6200, Washington, DC 20416.
Brittany Borg, Contracting Officer Representative 202–401–1354,
The Emerging Leaders Initiative aims to assist established small businesses located in historically challenged communities with increasing their sustainability, attracting outside investment, and strengthening each community's economic base by creating jobs and providing valuable goods and services. These objectives are pursued by offering eligible business executives a 7-month intensive course focused on the skills essential to develop their companies, expand their resource networks, and increase their confidence and motivation. The course is designed to be hands-on and is composed of classroom sessions, out-of-class preparation work, and executive mentoring groups where participants can discuss their challenges. A broad range of topics is covered in the curriculum, including financial measures of business health, strategies for marketing, access to funding, and employee management and recruitment.
SBA plans to conduct annual performance-monitoring activities to assess the short- and intermediate-term outcomes of participants in the Emerging Leaders Initiative. The broad outcomes assessed will include satisfaction, changes in management behavior, and changes in economic outcomes, such as loans obtained and jobs created. Specifically, SBA plans to implement three instruments with the participants in each cohort: an intake assessment form at the start of the program to document baseline conditions, a satisfaction-oriented feedback form at the end of the program, and an annual outcome-oriented survey for 3 years after program completion. The latter instrument will document changes in key outcomes over a longer period, because job growth, revenue growth, profitability, and other economic outcomes of program participation are expected to manifest in the intermediate and long terms.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for the State of South Carolina (FEMA–4241–DR), dated 10/05/2015.
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.
The notice of the Presidential disaster declaration for the State of SOUTH CAROLINA, dated 10/05/2015 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
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 Washington (FEMA–4243–DR), dated 10/20/2015.
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 10/20/2015, 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 145115 and for economic injury is 145125.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of South Carolina (FEMA–4241–DR), dated 10/15/2015.
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.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of South Carolina, dated 10/15/2015, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
In accordance with the Code of Federal Regulations 13—Business Credit and Assistance § 123.512, the following interest rate is effective for Military Reservist Economic Injury Disaster Loans approved on or after October 23, 2015.
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 November 30, 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
This form is a three-page questionnaire, principally in checklist form, designed to give SBA feedback from those who attend events which SBA cosponsors with other organizations. The form asks whether the event provided practical information which allowed them to manage their businesses more effectively and efficiently and gave them a good working knowledge of the subject. It asks whether the program was sufficient. It asks whether each speaker was well-organized, interesting, presented information at the appropriate level, and communicated well. It asks for suggestion for improvement, and for ideas for new topics.
The form asks some demographic information so that SBA can better understand the Community which these events serve. Where the event relates to government contracting, it asks whether the respondent has taken advantage of various government contracting programs which SBA offers. SBA may also use this form to help evaluate programs which it conducts by itself. Responding to the questionnaire is entirely voluntary.
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.
Social Security Administration.
Notice.
There will be no cost-of-living increase in Social Security benefits effective December 2015. The national average wage index for 2014 is $46,481.52. The cost-of-living increase and national average wage index affect other program parameters as described below.
Susan C. Kunkel, Office of the Chief Actuary, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410) 965–3000. Information relating to this announcement is available on our Internet site at
Under Title II of the Social Security Act (Act), there will be no cost-of-living increase effective December 2015. Because there is no increase, the following items will remain at current levels for 2016:
1. The Old-Age, Survivors, and Disability Insurance contribution and benefit base will remain $118,500 for remuneration paid in 2016 and self-employment income earned in taxable years beginning in 2016;
2. The monthly exempt amounts under the OASDI retirement earnings test for taxable years ending in calendar year 2016 will remain $1,310 for beneficiaries who will attain their
3. The “old-law” contribution and benefit base under title II of the Act will remain $88,200 for 2016;
4. The monthly amount deemed to constitute substantial gainful activity (SGA) for statutorily blind persons in 2016 will remain $1,820;
5. The maximum Federal Supplemental Security Income (SSI) monthly benefit amounts for 2016 under title XVI of the Act will remain $733 for an eligible individual, $1,100 for an eligible individual with an eligible spouse, and $367 for an essential person;
6. The special benefit amount under title VIII of the Act for certain World War II veterans will remain $549.75 for 2016;
7. The student earned income exclusion under title XVI of the Act will remain $1,780 per month in 2016, but not more than $7,180 for all of 2016;
8. The dollar fee limit for services performed as a representative payee will remain $41 per month ($78 per month in the case of a beneficiary who is disabled and has an alcoholism or drug addiction condition that leaves him or her incapable of managing benefits) in 2016; and
9. The dollar limit on the administrative-cost fee assessment charged to an appointed representative such as an attorney, agent, or other person who represents claimants will remain $91.
The national average wage index for 2014 is $46,481.52. This index affects the following amounts:
1. The dollar amounts (“bend points”) used in the primary insurance amount (PIA) benefit formula for workers who become eligible for benefits, or who die before becoming eligible, in 2016 will be $856 and $5,157;
2. The bend points used in the formula for computing maximum family benefits for workers who become eligible for benefits, or who die before becoming eligible, in 2016 will be $1,093, $1,578, and $2,058;
3. The taxable earnings a person must have to be credited with a quarter of coverage in 2016 will be $1,260;
4. The monthly amount deemed to constitute SGA for non-blind disabled persons will be $1,130 in 2016;
5. The earnings threshold establishing a month as a part of a trial work period will be $810 for 2016; and
6. Coverage thresholds for 2016 will be $2,000 for domestic workers and $1,700 for election officials and election workers.
The Act requires that we publish the following by November 1: The national average wage index for 2014 (215(a)(1)(D)), the earnings required to be credited with a quarter of coverage in 2016 (section 213(d)(2)), the formula for computing a PIA for workers who first become eligible for benefits or die in 2016 (section 215(a)(1)(D)), and the formula for computing the maximum benefits payable to the family of a worker who first becomes eligible for old-age benefits or dies in 2016 (section 203(a)(2)(C)).
There will be no cost-of-living increase for benefits under titles II and XVI of the Act.
Computation of the cost-of-living increase is based on an increase in a Consumer Price Index produced by the Bureau of Labor Statistics. At the time the Act was amended to provide cost-of-living increases, only one Consumer Price Index existed, namely the Consumer Price Index for Urban Wage Earners and Clerical Workers. Although the Bureau of Labor Statistics has since developed other consumer price indices, we follow legal precedent by continuing to use the Consumer Price Index for Urban Wage Earners and Clerical Workers. We refer to this index in the following paragraphs as the CPI.
Section 215(i)(1)(B) of the Act defines a “computation quarter” to be a third calendar quarter in which the average CPI exceeded the average CPI in the previous computation quarter. The last cost-of-living increase, effective for those eligible to receive title II benefits for December 2014, was based on the CPI increase from the third quarter of 2013 to the third quarter of 2014. Therefore, the last computation quarter is the third quarter of 2014. The law states that a cost-of-living increase for benefits is determined based on the percentage increase, if any, in the CPI from the last computation quarter to the third quarter of the current year. Therefore, we compute any increase in the CPI from the third quarter of 2014 to the third quarter of 2015.
Section 215(i)(1) of the Act states that the CPI for a cost-of-living computation quarter is the arithmetic mean of this index for the 3 months in that quarter. In accordance with 20 CFR 404.275, we round the arithmetic mean, if necessary, to the nearest 0.001. The CPI for each month in the quarter ending September 30, 2014, is: For July 2014, 234.525; for August 2014, 234.030; and for September 2014, 234.170. The arithmetic mean for the calendar quarter ending September 30, 2014 is 234.242. The CPI for each month in the quarter ending September 30, 2015, is: For July 2015, 233.806; for August 2015, 233.366; and for September 2015, 232.661. The arithmetic mean for the calendar quarter ending September 30, 2015 is 233.278. The CPI for the calendar quarter ending September 30, 2015 is less than that for the calendar quarter ending September 30, 2014. Therefore, the calendar quarter ending September 30, 2015 is not a cost-of-living computation quarter and there is no cost-of-living increase.
The following program amounts normally change based on the cost-of-living increase: (1) Title II benefits; (2) title XVI benefits; (3) title VIII benefits; (4) the student earned income exclusion; (5) the fee for services performed by a representative payee; and (6) the appointed representative fee assessment. Because there will be no cost-of-living increase, these program amounts will not increase in 2016 and will remain at their 2015 levels.
Certain other program amounts are adjusted annually based on the change in the national average wage index, rather than the CPI increase, but only if there also is a cost-of-living increase that year (as determined under section 215(i) of the Act). These amounts include (1) the OASDI contribution and benefit base, (2) the exempt amounts under the retirement earnings test, (3) the “old-law” contribution and benefit base (as determined under section 230 of the Act as in effect before the 1977 amendments), and (4) the SGA amount applicable to statutorily blind individuals. Because there is no cost-of-living increase this year, these amounts will not increase in 2016 and will remain at their 2015 levels.
Some program amounts are adjusted annually based on the change in the national average wage index whether there is a cost-of-living increase in that year or not. These include:
1. The dollar amounts, or bend points, in the PIA formula;
2. The bend points in the maximum family benefit formula;
3. The earnings required to credit a worker with a quarter of coverage;
4. The SGA amount for non-blind disabled individuals;
5. The earnings threshold that establishes a month as part of a trial work period for disabled beneficiaries;
6. The coverage threshold for election officials and election workers; and
7. The domestic employee coverage threshold.
These amounts will increase in 2016 based on the change in the national average wage. In the sections that follow, we explain the calculation of the percentage change in the national average wage and the corresponding changes in each of these program amounts.
We determined the national average wage index for calendar year 2014 based on the 2013 national average wage index of $44,888.16, published in the
Multiplying the national average wage index for 2013 ($44,888.16) by the ratio of the average wage for 2014 ($44,569.20) to that for 2013 ($43,041.39) produces the 2014 index, $46,481.52. The national average wage index for calendar year 2014 is about 3.55 percent higher than the 2013 index.
The Social Security Amendments of 1977 provided a method for computing benefits that generally applies when a worker first becomes eligible for benefits after 1978. This method uses the worker's average indexed monthly earnings (AIME) to compute the PIA. We adjust the formula each year to reflect changes in general wage levels, as measured by the national average wage index.
We also adjust, or index, a worker's earnings to reflect the change in the general wage levels that occurred during the worker's years of employment. Such indexing ensures that a worker's future benefit level will reflect the general rise in the standard of living that will occur during his or her working lifetime. To compute the AIME, we first determine the required number of years of earnings. We then select the number of years with the highest indexed earnings, add the indexed earnings for those years, and divide the total amount by the total number of months in those years. We then round the resulting average amount down to the next lower dollar amount. The result is the AIME.
The PIA is the sum of three separate percentages of portions of the AIME. In 1979 (the first year the formula was in effect), these portions were the first $180, the amount between $180 and $1,085, and the amount over $1,085. We call the dollar amounts in the formula governing the portions of the AIME the “bend points” of the formula. Therefore, the bend points for 1979 were $180 and $1,085.
To obtain the bend points for 2016, we multiply each of the 1979 bend-point amounts by the ratio of the national average wage index for 2014 to that average for 1977. We then round these results to the nearest dollar. Multiplying the 1979 amounts of $180 and $1,085 by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1977 ($9,779.44) produces the amounts of $855.54 and $5,156.99. We round these to $856 and $5,157. Therefore, the portions of the AIME to be used in 2016 are the first $856, the amount between $856 and $5,157, and the amount over $5,157.
Therefore, for individuals who first become eligible for old-age insurance benefits or disability insurance benefits in 2016, or who die in 2016 before becoming eligible for benefits, their PIA will be the sum of:
We round this amount to the next lower multiple of $0.10 if it is not already a multiple of $0.10. This formula and the rounding adjustment are stated in section 215(a) of the Act.
The 1977 amendments continued the policy of limiting the total monthly benefits that a worker's family may receive based on the worker's PIA. Those amendments also continued the relationship between maximum family benefits and PIAs but changed the method of computing the maximum benefits that may be paid to a worker's family. The Social Security Disability Amendments of 1980 (Pub. L. 96–265) established a formula for computing the maximum benefits payable to the family of a disabled worker. This formula applies to the family benefits of workers who first become entitled to disability insurance benefits after June 30, 1980, and who first become eligible for these benefits after 1978. For disabled workers initially entitled to disability benefits before July 1980 or whose disability began before 1979, we compute the family maximum payable the same as the old-age and survivor family maximum.
The formula used to compute the family maximum is similar to that used to compute the PIA. It involves computing the sum of four separate percentages of portions of the worker's PIA. In 1979, these portions were the first $230, the amount between $230 and $332, the amount between $332 and $433, and the amount over $433. We refer to such dollar amounts in the formula as the “bend points” of the family-maximum formula.
To obtain the bend points for 2016, we multiply each of the 1979 bend-point amounts by the ratio of the national average wage index for 2014 to that average for 1977. Then we round this amount to the nearest dollar. Multiplying the amounts of $230, $332, and $433 by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1977 ($9,779.44) produces the amounts of $1,093.19, $1,577.99, and $2,058.04. We round these amounts to $1,093, $1,578, and $2,058. Therefore, the portions of the PIAs to be used in 2016 are the first $1,093, the amount between $1,093 and $1,578, the amount between $1,578 and $2,058, and the amount over $2,058.
Thus, for the family of a worker who becomes age 62 or dies in 2016 before age 62, we will compute the total benefits payable to them so that it does not exceed:
We then round this amount to the next lower multiple of $0.10 if it is not already a multiple of $0.10. This formula and the rounding adjustment are set out section 203(a) of the Act.
The earnings required for a quarter of coverage in 2016 is $1,260. A quarter of coverage is the basic unit for determining if a worker is insured under the Social Security program. For years before 1978, we generally credited an individual with a quarter of coverage for each quarter in which wages of $50 or more were paid, or with 4 quarters of coverage for every taxable year in which $400 or more of self-employment income was earned. Beginning in 1978, employers generally report wages yearly instead of quarterly. With the change to yearly reporting, section 352(b) of the Social Security Amendments of 1977 amended section 213(d) of the Act to provide that a quarter of coverage would be credited for each $250 of an individual's total wages and self-employment income for calendar year 1978, up to a maximum of 4 quarters of coverage for the year. The 1977 legislation also provided a formula for years after 1978.
Under the prescribed formula, the quarter of coverage amount for 2016 is the larger of: (1) The 1978 amount of $250 multiplied by the ratio of the national average wage index for 2014 to that for 1976; or (2) the current amount of $1,220. Section 213(d) provides that if the resulting amount is not a multiple of $10, we round it to the nearest multiple of $10.
Multiplying the 1978 quarter of coverage amount ($250) by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1976 ($9,226.48) produces $1,259.46. We then round this amount to $1,260. Because $1,260 exceeds the current amount of $1,220, the quarter of coverage amount is $1,260 for 2016.
A finding of disability under titles II and XVI of the Act requires that a person, except for a title XVI disabled child, be unable to engage in SGA. A person who is earning more than a certain monthly amount is ordinarily considered to be engaging in SGA. The monthly earnings considered as SGA depends on the nature of a person's disability. Section 223(d)(4)(A) of the Act specifies a higher SGA amount for statutorily blind individuals under title II while Federal regulations (20 CFR 404.1574 and 416.974) specify a lower SGA amount for non-blind individuals. In a year where there is no cost-of-living increase, we only consider whether the SGA for non-blind disabled individuals will increase.
The monthly SGA amount for non-blind disabled individuals for 2016 is the larger of: (1) The amount for 2000 multiplied by the ratio of the national average wage index for 2014 to that for 1998; or (2) the amount for 2015. If the resulting amount is not a multiple of $10, we round it to the nearest multiple of $10.
Multiplying the 2000 monthly SGA amount for non-blind individuals ($700) by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1998 ($28,861.44) produces $1,127.35. We then round this amount to $1,130. Because $1,130 exceeds the current amount of $1,090, the monthly SGA amount for non-blind disabled individuals is $1,130 for 2016.
During a trial work period of 9 months in a rolling 60-month period, a beneficiary receiving Social Security disability benefits may test the ability to work and still receive monthly benefit payments. To be considered a trial work period month, earnings must be over a certain level. In 2016, any month in which earnings exceed $810 is considered a month of services for an individual's trial work period.
The method used to determine the new amount is set forth in our regulations at 20 CFR 404.1592(b). Monthly earnings in 2016, used to determine whether a month is part of a trial work period, is the larger of (1) the amount for 2001 ($530) multiplied by the ratio of the national average wage index for 2014 to that for 1999 or (2) the amount for 2015. If the amount so calculated is not a multiple of $10, we round it to the nearest multiple of $10.
Multiplying the 2001 monthly earnings threshold ($530) by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1999 ($30,469.84) produces $808.51. We then round this amount to $810. Because $810 exceeds the current amount of $780, the monthly earnings threshold is $810 for 2016.
The minimum amount a domestic worker must earn so that such earnings are covered under Social Security or Medicare is the domestic employee coverage threshold. For 2016, this threshold is $2,000. Section 3121(x) of the Internal Revenue Code provides the formula for increasing the threshold.
Under the formula, the domestic employee coverage threshold for 2016 is equal to the 1995 amount of $1,000 multiplied by the ratio of the national average wage index for 2014 to that for 1993. If the resulting amount is not a multiple of $100, we round it to the next lower multiple of $100.
Multiplying the 1995 domestic employee coverage threshold ($1,000) by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1993 ($23,132.67) produces $2,009.35. We then round this amount to $2,000. Therefore, the domestic employee coverage threshold amount is $2,000 for 2016.
The minimum amount an election official and election worker must earn so the earnings are covered under Social Security or Medicare is the election official and election worker coverage threshold. For 2016, this threshold is $1,700. Section 218(c)(8)(B) of the Act provides the formula for increasing the threshold.
Under the formula, the election official and election worker coverage threshold for 2016 is equal to the 1999 amount of $1,000 multiplied by the ratio of the national average wage index for 2014 to that for 1997. If the amount we determine is not a multiple of $100, it we round it to the nearest multiple of $100.
Multiplying the 1999 election worker coverage threshold amount ($1,000) by the ratio of the national average wage index for 2014 ($46,481.52) to that for 1997 ($27,426.00) produces $1,694.80. We then round this amount to $1,700. Therefore, the election official and election worker coverage threshold amount is $1,700 for 2016.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions and an extension of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than December 29, 2015. Individuals can obtain copies of the collection instruments by writing to the above email address.
1. Child Relationship Statement—20 CFR 404.355 & 404.731—0960–0116. To help determine a child's entitlement to Social Security benefits, SSA uses criteria under section 216(h)(3) of the Social Security Act, deemed child provision. SSA may deem a child to an insured individual if: (1) The insured individual presents SSA with satisfactory evidence of parenthood, and was living with or contributing to the child's support at certain specified times; or (2) the insured individual (a) acknowledged the child in writing; (b) was court decreed as the child's parent; or (c) was court ordered to support the child. To obtain this information, SSA uses Form SSA–2519, Child Relationship Statement. The respondents are people with knowledge of the relationship between certain individuals filing for Social Security benefits and their alleged biological children.
2. Request for Reinstatement (Title XVI)—20 CFR 416.999–416.999d—0960–0744. SSA uses Form SSA–372 to (1) inform previously entitled beneficiaries of the expedited reinstatement (EXR) requirements of Supplemental Security Income (SSI) payments under Title XVI of the Social Security Act (Act), and (2) document their requests for EXR. We require this application for reinstatement of benefits for respondents to obtain SSI disability payments for EXR. When an SSA claims representative learns of individuals whose medical conditions no longer permit them to perform substantial gainful activity as defined in the Act, the claims representative gives or mails the form to the previously entitled individuals if they request EXR over the phone. SSA employees collect this information whenever an individual files for EXR benefits. The respondents are applicants for EXR of SSI disability payments.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding the information collection would be most useful if OMB and SSA receive them 30 days from the date of this publication.
Response to Notice of Revised Determination—20 CFR 404.913–404.914, 404.992(b), 416.1413–416.1414, and 416.1492(d)—0960–0347. When SSA determines: (1) Claimants for initial disability benefits do not actually have a disability, or (2) current disability recipients' records show their disability ceased, SSA notifies the disability claimants or recipients of this decision. In response to this notice, the affected claimants and disability recipients have the following recourse: (1) They may request a disability hearing to contest SSA's decision and (2) they may submit additional information or evidence for SSA to consider. Disability claimants, recipients, and their representatives use Form SSA–765 to accomplish these two actions. If respondents request the first option, SSA's Disability Hearings Unit uses the form to schedule a hearing; ensure an interpreter is present, if required; and ensure the disability recipients or claimants and their representatives receive a notice about the place and time of the hearing. If respondents choose the second option, SSA uses the form and other evidence to reevaluate the claimant's case and determine if the new information or evidence will change SSA's decision. The respondents are disability claimants, current disability recipients, or their representatives.
Intermodal RR Transfer, LLC (IRRT), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to lease from JACJON Associates (JACJON)
The transaction may be consummated on or after November 15, 2015, the effective date of the exemption (30 days after the exemption was filed).
IRRT certifies that, as a result of this transaction, its projected revenues will not exceed those of a Class III rail carrier and will not exceed $5 million annually.
IRRT states that the Line previously has been owned and operated as private track and might otherwise be considered spur, industrial, or switching track exempt from the Board's authority under 49 U.S.C. 10906, except that this is IRRT's initial rail acquisition and operation. IRRT certifies that the lease agreement contains no interchange commitment between the parties.
If the notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than November 6, 2015 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 35971, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy must be served on Richard H. Streeter, 5255 Partridge Lane NW., Washington, DC 20016.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Surface Transportation Board, DOT.
60-Day notice of intent to seek extension of approval: Waybill Compliance Survey.
As required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501–3521 (PRA), the Surface Transportation Board (STB or Board) gives notice of its intent to seek approval from the Office of Management and Budget (OMB) for an extension of the Waybill Compliance Survey. This information collection is described in detail below.
Comments are requested concerning: (1) The accuracy of the Board's burden estimates; (2) ways to enhance the quality, utility, and clarity of the information collected; (3) 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, when appropriate; and (4) whether the collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility. Submitted comments will be summarized and included in the Board's request for OMB approval.
In order to determine whether any of the surveyed railroads should be filing a Waybill Sample, the Board needs to collect the information in the Waybill Compliance Survey—information on the number of carloads of traffic terminated each year by U.S. railroads—from railroads that are not filing a Waybill Sample. In addition, information collected in the Waybill Compliance Survey, on a voluntary basis, about the total operating revenue of each railroad helps to determine whether respondents are subject to other statutory or regulatory requirements. Because many of the Board's reporting requirements apply only to railroads with large operating revenues, accurate determinations regarding the size of a railroad's operating revenues help the Board minimize the reporting burden for smaller railroads. The Board has authority to collect this information under 49 U.S.C. 11144–45, and under 49 CFR 1244.2.
Comments on this information collection should be submitted by December 29, 2015.
Direct all comments to Chris Oehrle, Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001, or to
Under the PRA, a federal agency that conducts or sponsors a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Under § 3506(c)(2)(A) of the PRA, federal agencies are required to provide, prior to an agency's submitting a collection to OMB for approval, a 60-day notice and comment period through publication in the
SteelRiver Infrastructure Fund North America LP (SteelRiver), SteelRiver Devco Holdings LLC (Devco), and SR Transportation Holdings LLC (SRTH) (collectively, Applicants), all noncarriers, have jointly filed a verified notice of exemption under 49 CFR 1180.2(d)(2) to acquire control of Georgia Northeastern Railroad Company, Inc. (GNRR) and its subsidiary, Blue Ridge Scenic Excursions, Inc. (BRSE).
Applicants state that SRTH intends to acquire the shares of GNRR on or after November 15, 2015, the effective date of the exemption (30 days after the verified notice of exemption was filed).
SRTH is owned by Devco, which in turn is owned by SteelRiver. Devco and SRTH do not control any carriers. SteelRiver is owned by a diverse group of U.S. and foreign pension funds, insurance companies, and other investors. SteelRiver controls PRC Funding LLC, a noncarrier, which controls Patriot Funding LLC, a noncarrier, which controls PRC Holdings LLC, a noncarrier, which controls PRC Midco LLC, a noncarrier, which controls Patriot Rail Company LLC, (Patriot), a noncarrier. Patriot controls 13 Class III railroads (collectively, the Subsidiary Railroads). For a complete list of these rail carriers, and the states in which they operate, see the notice of exemption filed on October 16, 2015, in this proceeding. The notice is available on the Board's web at
GNRR operates approximately 105.92 miles of railroad between Marietta and Mineral Bluff, Ga. GNRR owns about 48 miles, leases about 32.74 miles from the CSX Transporation, Inc., and leases about 25.18 miles from the Georgia Department of Transportation, including industrial, spur and other track.
According to Applicants, SRTH entered into a Stock Purchase Agreement (the Agreement)
Applicants state that: (1) The Subsidiary Railroads will not connect with GNRR and BRSE; (2) the proposed transaction is not part of a series of anticipated transactions that would connect the railroads with each other or
Applicants state that the proposed transaction is intended to promote the investment objectives of SteelRiver, Devco, and SRTH and to improve the efficiency, financial strength, and ability of GNRR and BRSE to meet the needs of shippers. There are no current plans to make substantial changes in the day-to-day operations of GNRR or BRSE, to sell GNRR or BRSE, or to abandon rail lines in connection with the proposed transaction. Applicants state that they do not contemplate making significant changes in the current workforces at GNRR or BRSE.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under §§ 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed by November 6, 2015 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 35967 must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, a copy of each pleading must be served on: Louis E. Gitomer, Esq., Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
Board decisions and notices are available on our Web site at: “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of the Secretary (OST), Department of Transportation (Department) or (DOT).
Notice and request for comments.
The Office of the Secretary, Office of Small and Disadvantaged Business Utilization (OSDBU), invites public comments about our intention to request the Office of Management and Budget's (OMB) approval to renew a collection. This collection renewal request includes one Short Term Lending Program (STLP) application used for both new loan guarantee applicants and renewal loan guarantee applicants. The information collected in the STLP application will determine the applicant's eligibility and is necessary to approve or deny a loan. We are required to publish this notice in the
Written comments should be submitted by December 29, 2015.
You may submit your comments identified by DOT–OST–2015–0211 by any of the following methods:
•
•
•
John Ralston, Manager, Financial Assistance Division, Office of Small and Disadvantaged Business Utilization, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, Routing Symbol S–40, 202–366–5577 (phone) or
Supporting documentation: Required documentation shall include, but is not limited to, the following items:
a. Business, trade, or job performance reference letters;
b. DBE or other eligible certification letters;
c. Aging report of receivables and payables;
d. Business tax returns;
e. Business financial statements;
f. Personal income tax returns;
g. Personal financial statements;
h. Schedule of work in progress (WIP);
i. Signed and dated copy of transportation-related contracts;
j. Business debt schedule;
k. Cash flow projections;
l. Owner(s) and key management resumes.
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
Written comments should be received on or before December 29, 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 Walt Henderson, EFT Strategy Division; 401 14th Street SW., Room 303, Washington, DC 20227, (202) 874–6624
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before November 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by email at
Section 148 of the Internal Revenue Code requires issuers of tax-exempt bonds to rebate certain arbitrage profits earned on non-purpose investments acquired with the bond proceeds. Issuers are required to file a Form 8038–T and remit the rebate. Issuers are also required to keep records of certain interest rate hedges so that the hedges are taken into account in determining arbitrage profits. The scope of interest rate hedging transactions covered by the arbitrage regulations was broadened by requiring that hedges entered into prior to the sale date of the bonds are covered as well.
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before November 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before November 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before November 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before November 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3521), this notice announces that the Veterans Benefits
Comments must be submitted on or before November 30, 2015.
Submit written comments on the collection of information through
Crystal Rennie, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 632–7492 or email
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. The
By direction of the Secretary.
Department of Veterans Affairs (VA).
Notice of availability.
VA proposes to reconfigure health care services throughout the 100,000-square mile VA BHHCS service area, including the addition of purchased care for Veterans from community providers to improve geographic access to care. In accordance with the National Environmental Policy Act (NEPA), VA has prepared a Draft EIS that analyzes the potential impacts of six alternatives for changes to VA's facilities in Hot Springs and Rapid City, South Dakota, to support the proposed services reconfiguration. The Draft EIS uses the substitution approach for integrating compliance with Section 106 of the National Historic Preservation Act into the EIS process. The Draft EIS is available for review on the agency Web site and at public libraries in the service area.
Interested parties are invited to submit comments in writing on the VA BHHCS Reconfiguration Draft EIS by January 5, 2016.
Submit written comments on the VA BHHCS Reconfiguration Draft EIS online through
Staff Assistant to the Director, VA Black Hills Health Care System, 113 Comanche Road, Fort Meade, SD 57741 or by email to
VA proposes to reconfigure health care services throughout the VA BHHCS service area including, under Alternatives A through D, the addition of purchased care for Veterans from community providers; this reconfiguration would improve the system's compliance with VA's “Geographic Access to Care” guidelines.
Six alternatives are considered in detail in the Draft EIS, as well as a supplement to four of the alternatives. The alternatives propose different locations and combinations of facilities serving as a community-based outpatient clinic (CBOC), a multi-specialty outpatient clinic (MSOC), and a residential rehabilitation treatment program (RRTP) facility; expanding, renovating, or vacating existing facilities; and taking no action:
A. Hot Springs—new CBOC, cease services at existing VA campus; Rapid City—new MSOC (replacing leased CBOC) and 100-bed RRTP.
B. Hot Springs—new CBOC and 100-bed RRTP, cease services at existing VA campus; Rapid City—new MSOC (replacing leased CBOC).
C. Hot Springs—renovations for new CBOC in Building 12 and 100-bed RRTP in domiciliary at existing VA campus; Rapid City—new MSOC (replacing leased CBOC).
D. Hot Springs—new CBOC and 24-bed RRTP, cease services at existing VA campus; Rapid City—new MSOC (replacing leased CBOC) and 76-bed RRTP.
E. Save the VA Proposal.
Hot Springs—renovations and construction to continue and expand inpatient and outpatient services at existing VA campus, including 200-bed RRTP; Rapid City—services from existing leased CBOC.
F. No Action.
G. Supplemental alternative to A, B, C, or D for re-use of part or all of existing Hot Springs campus.
The analysis uses the substitution procedures defined in the regulations for implementing Section 106 of the National Historic Preservation Act, by which agencies can develop an integrated NEPA analysis to substitute the NEPA process for effects analysis and consultation under Section 106. Formal consultation and identification and resolution of effects to historic properties are documented throughout the EIS.
Environmental topics that are addressed in the Draft EIS include aesthetics, air quality, cultural resources and historic properties, geology and soils, hydrology and water quality, wildlife and habitat, noise, land use, floodplains and wetlands, socioeconomics, community services, solid waste and hazardous materials, transportation and parking, utilities, and environmental justice. Best management practices and mitigation measures that could alleviate environmental effects
The VA BHHCS Reconfiguration Draft EIS is available for viewing on the VA BHHCS Web site
Information related to the EIS process is also available for viewing on the VA BHHCS Web site
Interested parties are invited to participate in any of six public meetings summarizing the results of the Draft EIS. These meetings will be held in Rapid City, SD; Hot Springs, SD; Pine Ridge, SD; Chadron, NE; Alliance, NE; and Scottsbluff, NE. The dates, times, and locations for these meetings will be published online at
At the public meetings, interested parties will also have the opportunity to comment regarding the National Historic Preservation Act Section 106 process, which has been integrated into this NEPA process.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 26, 2015, for publication.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C., App. 2, that the National Research Advisory Council will hold a meeting on Wednesday, December 9, 2015, at 810 Vermont Ave. NW., Conference Room 730, Washington, DC 20420. The meeting will convene at 9:00 a.m. and end at 4:00 p.m., and is open to the public. Anyone attending must show a valid photo ID to building security and be escorted to the meeting. Please allow 15 minutes before the meeting begins for this process.
The agenda will include a review of the Million Veteran Program and a joint meeting with the Association of American Medical Colleges.
No time will be allocated at this meeting for receiving oral presentations from the public. Members of the public wanting to attend, or needing further information may contact Pauline Cilladi-Rehrer, Designated Federal Officer, ORD (10P9), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 443–5607, or by email at
Department of Veterans Affairs.
Notice of intent.
Pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321,
Interested parties are invited to submit scoping comments for the Replacement Louisville VAMC EIS by Monday, November 30, 2015.
Submit scoping comments online through
Robley Rex VAMC, Attn: Replacement VAMC Activation Team Office, 800 Zorn Avenue, Louisville, KY 40206 or by email to
VA proposes to construct and operate a new 104-bed hospital, which will include diagnostic and treatment facilities, a Veterans Benefits Administration (VBA) regional office, and required site amenities and improvements on a new campus. This proposed project would replace the existing Robley Rex VA Medical Center (VAMC), three community-based outpatient clinics, and the existing VBA regional office with new facilities of sufficient capacity to meet the current and projected future healthcare needs of Veterans in the Louisville service area. The proposed project is needed because the existing Louisville VAMC facilities on Zorn Avenue have reached the end of their serviceable lives. The building conditions and site configuration at the existing 63-year old VAMC are inadequate to effectively and efficiently meet the expanding needs of VA's health care mission and VBA services in the region. Within the Louisville service area, 60,943 Veterans were enrolled to receive care in Fiscal Year 2014. Enrollment is expected to increase to more than 68,000 by FY 2024. During this same time period, outpatient clinic stops are expected to increase from 763,104 to over 963,000. The existing Louisville VAMC facility is insufficient to meet the current and the increasing future needs of VA's health care mission in the region. Therefore, VA conducted studies beginning in 2009 that recommended new facilities be constructed on a new site that would be better suited to meet future needs.
VA has identified two potential action alternatives to be analyzed in detail in this EIS: Construction and operation of a replacement VAMC campus at the “Brownsboro Site” at 4906 Brownsboro Road, Louisville; and construction and operation of a replacement VAMC campus at the “St. Joseph Site,” on a parcel located east of I–265 and south of Factory Lane in Louisville. The Brownsboro and St. Joseph Sites were identified through a site selection process conducted by VA in 2011. The Brownsboro Site was acquired by VA in 2012 as the proposed location for the replacement VAMC. In addition to these two action alternatives, the EIS also will evaluate the impacts associated with No Action or “status quo” as required by the National Environmental Policy Act (NEPA) and its implementing regulations. The three community-based outpatient clinics and the existing VBA
Environmental topics that will be addressed in the EIS include aesthetics, air quality, cultural resources and historic properties, geology and soils, hydrology and water quality, wildlife and habitat, noise, land use, floodplains and wetlands, socioeconomics, community services, solid waste and hazardous materials, transportation and traffic, utilities, and environmental justice. Best management practices and mitigation measures that could alleviate any identified environmental effects will be included where relevant.
Two prior environmental assessments (EAs) addressed aspects of VA's proposal. In June 2012, VA completed a
Extensive public input was provided by Veterans, elected officials, residents near the proposed new locations, and other interested members of the public throughout the scoping and public draft reviews for the two EAs. These comments remain in the project record and are being incorporated as identified scoping issues for this EIS.
VA does not intend to hold a public scoping event specific to this EIS, anticipating that any input would largely reiterate issues that have been previously identified. Upon specific request, VA will consider whether an additional in-person scoping event would enhance public involvement in this EIS. The event would be at a Louisville venue at which a project fact sheet would be available in hard copy, posters summarizing the EIS process would be available for viewing, and members of the public could submit written comments using either comment forms or their own written format. There would be no formal presentation by VA or verbal public comment opportunity. The comment form (this form is not a required format for submitting scoping comments), the fact sheet, and the two previous EAs are available online at
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on October 22, 2015, for publication.
In accordance with the Federal Advisory Committee Act, 5 U.S.C., App. 2, the Commission on Care gives notice that it will meet on Monday, November 16, 2015, and Tuesday, November 17, 2015, at the J.W. Marriott, Jr. ASAE Conference Center, 1575 I St. NW., Washington, DC 20005. The meeting will convene at 8:30 a.m. and end at 12:30 p.m. on both days. The meeting is open to the public.
The purpose of the Commission, as described in section 202 of the Veterans Access, Choice, and Accountability Act of 2014, is to examine the access of Veterans to health care from the Department of Veterans Affairs and strategically examine how best to organize the Veterans Health Administration, locate health care resources, and deliver health care to Veterans during the next 20 years.
On the mornings of November 16 and 17, the Commission will hear from experts who will provide insights on work to be done by the Commission. On the afternoons of November 16 and 17, and the morning of November 18, the Committee will convene closed sessions in accordance with The Government in the Sunshine Act, 5 U.S.C. 552b(c)(2) and (c)(9)(B).
No time will be allocated at this meeting for receiving oral presentations from the public. The public may submit written statements for the Commission's review to Sharon Gilles or John Goodrich, Designated Federal Officers, Commission on Care, at
Federal Deposit Insurance Corporation.
Privacy Act of 1974: Republication of Notice of Systems of Records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a(e)(4) and OMB Circular A–130, the Federal Deposit Insurance Corporation (“FDIC”) is republishing in full a notice of the existence and character of each FDIC system of records. FDIC is making minor editorial and stylistic revisions to make the notices clearer, more accurate, and up-to-date.
This notice shall become final and effective on October 30, 2015.
Gary Jackson, Counsel, FDIC, 550 17th Street NW., Washington, DC 20429, (703) 562–2677.
In accordance with the Privacy Act of 1974, as amended, the FDIC publishes in the
The Attorney and Legal Intern Applicant Records (FDIC 30–64–0001) system was used to manage applications for the positions of honors attorney or legal intern with the Legal Division of the FDIC. Due to the implementation of the Pathways Program (Exec. Order No. 13562), applications for the position of legal intern are now received through USAJOBS and processed directly by the Human Relations Branch of the Division of Administration. The System Name has been revised to reflect the new title, Honors Attorney Applicant Records (FDIC 30–64–0001), and the Purpose and Categories of Individuals Covered by the System have been revised to delete reference to applicants for the position of legal intern.
The Employee Confidential Financial Disclosure Records (FDIC 30–64–0006) system is used to process and maintain information to ensure compliance with applicable Federal Ethics Regulations and supplemental FDIC Standards of Ethical Conduct. The Categories of Individuals Covered by the System has been revised to clarify that the system also includes prospective employees.
The Online Ordering Request Records (FDIC 30–64–0031) system is used to process orders for FDIC publications and products. The Categories of Records has been revised to delete the collection of debit and/or credit card payment information because all available products are now provided at no cost to the public. The Routine Uses of the records has also been revised to delete the routine disclosure of information to Pay.gov formerly required in order to process debit or credit card transactions.
The Investigative Files of the Office of Inspector General (FDIC 30–64–0010) system is used to document investigations by the OIG or other investigative agencies regarding FDIC programs and operations. The Categories of Records in the System has been revised to clarify that correspondence maintained in the system may include payroll, telephone, and email records.
The System Manager and/or System Location has been revised to reflect current administrative responsibility for the following systems of records: Employee Training Information Records (FDIC 30–64–0007); Safety and Security Incident Records (FDIC 30–64–0009); Financial Information Management Records (FDIC 30–64–0012); Transit Subsidy Program Records (FDIC 30–64–0026); Parking Program Records (FDIC 30–64–0027); and Identity, Credential and Access Management Records (FDIC 30–64–0035).
The FDIC is not adding any new systems, or making any system alternations that would require prior public comment or notice to the Office of Management and Budget and Congress. See 5 U.S.C. 552a(e)(11) and 552a(r); OMB Circular A–130, Appendix I at § 4(c)(1). More detailed information on the revised systems of records may be viewed in the complete text below.
Unclassified but sensitive.
Legal Division, FDIC, 550 17th Street NW., Washington, DC 20429; and Atlanta Regional Office, FDIC, 10 Tenth Street, Suite 800, Atlanta, Georgia 30309.
Applicants for the position of honors attorney with the Legal Division of the FDIC.
Contains correspondence from the applicants and individuals whose names were provided by the applicants as references; applicants' resumes; application forms; and in some instances, comments of individuals who interviewed applicants; documents relating to an applicant's suitability or eligibility; writing samples; and copies of academic transcripts and class ranking.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The information in this system is used to evaluate the qualifications of individuals who apply for honors attorney positions in the Legal Division.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To individuals or concerns whose names were supplied by the applicant as references and/or past or present employers in requesting information about the applicant.
Assistant General Counsel, Open Bank Regional Affairs Section, Legal Division, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The information is obtained from the applicants; references supplied by the applicants; current and/or former employers of the applicants; and FDIC employees who interviewed the applicants.
Pursuant to 12 CFR part 310.13(b), investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for FDIC employment may be withheld from disclosure to the extent that disclosure of such material would reveal the identity of a source who furnished information to the FDIC under an express promise of confidentiality.
Unclassified but sensitive.
Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
(1) Individuals who participate or have participated in the conduct of or who are or were connected with financial institutions, such as directors, officers, employees, and customers, and who have been named in suspicious activity reports or administrative enforcement orders or agreements. Financial institutions include banks, savings and loan associations, credit unions, other similar institutions, and their affiliates whether or not federally insured and whether or not established or proposed.
(2) Individuals, such as directors, officers, employees, controlling shareholders, or persons who are the subject of background checks designed to uncover criminal activities bearing on the individual's fitness to be a director, officer, employee, or controlling shareholder.
Contains interagency or intra-agency correspondence or memoranda; criminal referral reports; suspicious activity reports; newspaper clippings; Federal, State, or local criminal law enforcement agency investigatory reports, indictments and/or arrest and conviction information; and administrative enforcement orders or agreements. Note: Certain records contained in this system (principally criminal investigation reports prepared by the Federal Bureau of Investigation, Secret Service, and other federal law enforcement agencies) are the property of federal law enforcement agencies. Upon receipt of a request for such records, the FDIC will notify the proprietary agency of the request and seek guidance with respect to disposition. The FDIC may forward the request to that agency for processing in accordance with that agency's regulations.
Sections 5, 6, 7, 8, 9, 18, and 19 of the Federal Deposit Insurance Act (12 U.S.C. 1815, 1816, 1817, 1818, 1819, 1828, 1829).
The information is maintained to support the FDIC's regulatory and supervisory functions by providing a centralized system of information (1) for conducting and documenting investigations by the FDIC or other financial supervisory or law enforcement agencies regarding conduct within financial institutions by directors, officers, employees, and customers, which may result in the filing of suspicious activity reports or criminal referrals, referrals to the FDIC Office of the Inspector General, or the initiation of administrative enforcement actions; and (2) to identify whether an individual is fit to serve as a financial institution director, officer, employee or controlling shareholder.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To a financial institution affected by enforcement activities or reported criminal activities;
(11) To the Internal Revenue Service and appropriate State and local taxing authorities;
(12) To other Federal, State or foreign financial institutions supervisory or regulatory authorities; and
(13) To the Department of the Treasury, federal debt collection centers, other appropriate federal agencies, and private collection contractors or other third Parties authorized by law, for the purpose of collecting or assisting in the collection
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Director, Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Financial institutions; financial institution supervisory or regulatory authorities; newspapers or other public records; witnesses; current or former FDIC employees; criminal law enforcement and prosecuting authorities.
Portions of the records in this system of records were compiled for law enforcement purposes and are exempt from disclosure under 12 CFR part 310.13 and 5 U.S.C. 552a(k)(2). Federal criminal law enforcement investigatory reports maintained as part of this system may be the subject of exemptions imposed by the originating agency pursuant to 5 U.S.C. 552a(j)(2).
Unclassified but sensitive.
Legal Division, Executive Secretary Section, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals who have been the subject of administrative enforcement actions or other personnel actions by the FDIC Board of Directors or by standing committees of the FDIC and individuals who have been the subject of administrative actions by FDIC officials under delegated authority.
Minutes of the meetings of the FDIC Board of Directors or standing committees and orders of the Board of Directors, standing committees, or other officials as well as annotations of entries into the minutes and orders.
Sections 8, 9, and 19 of the Federal Deposit Insurance Act (12 U.S.C. 1818, 1819, 1829).
The system is maintained to record the administrative and personnel actions taken by the FDIC Board of Directors, standing committees, or other officials.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To the U.S. Office of Personnel Management, General Accounting Office, the Office of Government Ethics, the Merit Systems Protection Board, the Office of Special Counsel, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority or its General Counsel of records or portions thereof determined to be relevant and necessary to carrying out their authorized functions, including but not limited to a request made in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract or issuance of a grant, license, or other benefit by the requesting agency, but only to the extent that the information disclosed is necessary and relevant to the requesting agency's decision on the matter.
Legal Division, Executive Secretary Section, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Intra-agency records.
None.
Unclassified but sensitive.
Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
(1) Individuals who acquired or disposed of voting stock in an FDIC-insured financial institution resulting in a change of financial institution control or ownership; and
(2) Individuals who filed or are included as a member of a group listed in a “Notice of Acquisition of Control” of an FDIC-insured financial institution. Note: The information is maintained only for the period 1989 to 1995. Commencing in 1996 the records were no longer collected nor maintained on an individual name or personal identifier basis and are not retrievable by individual name or personal identifier. Beginning in 1996, information concerning changes in financial institution control is collected and maintained based upon the name of the FDIC-insured financial institution or specialized number assigned to the FDIC-insured financial institution.
Records include the name of proposed acquirer; statement of assets and liabilities of acquirer; statement of income and sources of income for each acquirer; statement of liabilities for each acquirer; name and location of the financial institution; number of shares to be acquired and outstanding; date “Change in Control Notice” or “Notice of Acquisition of Control” was filed; name and location of the newspaper in which the notice was published and date of publication. For consummated transactions, names of sellers/transferors; names of purchasers/transferees and number of shares owned after transaction; date of transaction on institution's books, number of shares acquired and outstanding. If stock of a holding company is involved, the name and location of the holding company and the institution(s) it controls.
Section 7(j) of the Federal Deposit Insurance Act (12 U.S.C. 1817(j)).
The system maintains information on individuals involved in changes of control of FDIC-insured financial institutions for the period 1989 to 1995 and is used to support the FDIC's regulatory and supervisory functions.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To other Federal or State financial institution supervisory authorities.
Director, Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Persons who acquired control of an FDIC-insured financial institution; the insured financial institution or holding company in which control changed; filed “Change in Control Notice” form and “Notice of Acquisition of Control” form during the period 1989 to 1995; federal and state financial institution supervisory authorities.
None.
Unclassified but sensitive.
Division of Depositor and Consumer Protection, FDIC, 550 17th Street NW., Washington, DC 20429, and FDIC regional offices for complaints or inquiries originating within or involving an FDIC-insured depository institution located in an FDIC region. (See
Individuals who have submitted complaints or inquiries concerning activities or practices of FDIC-insured depository institutions.
This system contains correspondence and records of other communications between the FDIC and the individual submitting a complaint or making an inquiry, including copies of supporting documents and contact information supplied by the individual. This system may also contain regulatory and supervisory communications between the FDIC and the FDIC-insured depository institution in question and/or intra-agency or inter-agency memoranda or correspondence relevant to the complaint or inquiry.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819) and Section 202(f) of Title II of the Federal Trade Improvement Act (15 U.S.C. 57a(f)).
The system maintains correspondence from individuals regarding complaints or inquiries concerning activities or practices of FDIC-insured depository institutions. The information is used to identify concerns of individuals, to manage correspondence received from individuals and to accurately respond to complaints, inquiries, and concerns expressed by individuals. The information in this system supports the FDIC regulatory and supervisory functions.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To the insured depository institution which is the subject of the complaint or inquiry when necessary to investigate or resolve the complaint or inquiry;
(11) To authorized third-party sources during the course of the investigation in order to resolve the complaint or inquiry. Information that may be disclosed under this routine use is limited to the name of the complainant or inquirer and the nature of the complaint or inquiry and such additional information necessary to investigate the complaint or inquiry; and
(12) To the Federal or State supervisory/regulatory authority that has direct supervision over the insured depository institution that is the subject of the complaint or inquiry.
Associate Director, Division of Depositor and Consumer Protection, FDIC, 550 17th Street NW., Washington, DC 20429, or the Regional Director, Division of Supervision and Consumer Protection for records maintained in FDIC regional offices (See
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The information is obtained from the individual on whom the record is maintained; FDIC-insured depository institutions that are the subject of the complaint; the appropriate agency, whether Federal or State, with supervisory authority over the institution; congressional offices that may initiate the inquiry; and other parties providing information to the FDIC in an attempt to resolve the complaint or inquiry.
None.
Unclassified but sensitive.
Records are located in component divisions, offices and regional offices to which individuals covered by the system are assigned. Duplicate copies of the records are located in the Legal Division, Executive Secretary Section, Ethics Unit, FDIC, 550 17th Street NW., Washington, DC 20429. (See
Current and former officers and employees, prospective employees, and special government employees.
Contains statements of personal and family financial holdings and other interests in business enterprises and real
(1) Confidential Financial Disclosure Report—contains listing of personal and family investment holdings, interests in business enterprises and real property, creditors, and outside employment for covered employees.
(2) Confidential Report of Indebtedness—contains information on extensions of credit to employees, including loans and credit cards, by FDIC-insured depository institutions or their subsidiaries; may also contain memoranda and correspondence relating to requests for approval of certain loans extended by insured financial institutions or subsidiaries thereof.
(3) Confidential Report of Interest in FDIC-Insured Depository Institution Securities—contains a brief description of an employee's direct or indirect interest in the securities of an FDIC-insured depository institution or affiliate, including a depository institution holding company, and the date and manner of acquisition or divestiture; a brief description of an employee's direct or indirect continuing financial interest through a pension or retirement plan, trust or other arrangement, including arrangements resulting from any current or prior employment or business association, with any FDIC-insured depository institution, affiliate, or depository institution holding company; and a certification acknowledging that the employee has read and understands the rules governing the ownership of securities in FDIC-insured depository institutions.
(4) Employee Certification and Acknowledgment of Standards of Conduct Regulation—contains employee's certification and acknowledgment that he or she has received a copy of the Standards of Ethical Conduct for Employees of the FDIC.
(5) Public Financial Disclosure Form—contains a description of an employee's personal and family investment holdings, including interests in business enterprises or real property, non-investment income, creditors, former or future employer information, outside positions, and other affiliations for political appointees.
Ethics in Government Act of 1978 (5 U.S.C. 7301 and App.); Section 9 and 12(f) of the Federal Deposit Insurance Act (12 U.S.C. 1819(a), 1822(f)); 26 U.S.C. 1043; Executive Order Nos. 12674 (as modified by 12731), 12565, and 11222; 5 CFR part 2634, 2635, and 3201.
The records are maintained to assure compliance with the standards of conduct for Government employees contained in the Executive Orders, Federal Statutes and FDIC regulations and to determine if a conflict of interest exists between employment of individuals by the FDIC and their personal employment and financial interests.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections; and
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project.
Ethics Program Manager, Executive Secretary Section, Legal Division, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The information is obtained from the individual or a person or entity designated by the individual; FDIC employees designated as Ethics Counselors or Deputy Ethics Counselors; FDIC automated personnel records system; and other employees or individuals to whom the FDIC has provided information in connection with evaluating the records maintained.
None.
Unclassified but sensitive.
FDIC Corporate University, 3501 Fairfax Drive, Arlington, VA 22226, and FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226.
All current and former employees and other individuals that have attended training conducted or sponsored by the FDIC.
Records include the schedule of the individual's training classes and other educational programs attended, dates of attendance, continuing education credits earned, tuition fees and expenses, and related information. Also contains information on career development, certifications, commissions, and learner skills and competencies. The system used by the Office of Inspector General may also contain information on educational degrees or professional memberships and other similar information.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); Sections 4(b) and 6(e) of the Inspector General Act of 1978, as amended (5 U.S.C. app).
The system is used to record and manage comprehensive learning and development information that is available to learners, training administrators, and management. The system is also used to schedule training events, enroll students, launch online training, and run reports. The system is used to track training, career development, certifications, commissions, continuing education and learner skills and competencies.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To educational institutions for purposes of enrollment and verification of employee attendance and performance;
(11) To vendors, professional licensing boards or other appropriate third parties, for the purpose of verification, confirmation, and substantiation of training or licensing requirements;
(12) To the U.S. Office of Personnel Management for purposes of tracking and analyzing training and related information of FDIC employees; and
(13) To other Federal Offices of Inspector General or other entities for purposes of conducting quality assessments or peer reviews of the OIG or any of its components.
Assistant Director, Educational Support Services, Corporate University, FDIC, 3501 Fairfax Drive, Arlington, VA 22226; Deputy Assistant Inspector General for Management, Office of Inspector General, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The information is obtained from the employee about whom the record is maintained, employee supervisors, training administrators, the training facility or institution attended, and FDIC automated personnel records systems.
None.
Unclassified but sensitive.
Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429, and FDIC regional offices. (See
Individuals who directly, indirectly, or in concert with others, own or control two or more insured depository institutions.
Contains the names of and contact information for individuals who, either alone or in concert with others, own or control two or more insured depository institutions as well as the insured depository institutions names, locations, stock certificate numbers, total asset size, and percentage of outstanding stock owned by the controlling individual or group of individuals; charter types and, if applicable, name of intermediate holding entity and percentage of holding company held by controlling individual or group.
Sections 7(j) and 9 of the Federal Deposit Insurance Act (12 U.S.C. 1817(j), 1819).
This system identifies and maintains information of possible linked FDIC-insured depository institutions or holding companies which, due to their common ownership, present a concentration of resources that could be susceptible to common risks. The information in this system is used to support the FDIC's regulatory and supervisory functions.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To other Federal or State financial institution supervisory authorities for: (a) Coordination of examining resources when the chain banking organization is composed of insured depository institutions subject to multiple supervisory jurisdictions; (b) coordination of evaluations and analysis of the condition of the consolidated chain organization; and (c) coordination of supervisory, corrective or enforcement actions.
Director, Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Examination reports and related materials; regulatory filings; and Change in Financial Institution Control Notices filed pursuant to 12 U.S.C. 1817(j).
None.
Unclassified but sensitive.
FDIC, Division of Administration, 550 17th Street NW., Washington, DC 20429, and the FDIC regional or area offices. (See
To the extent not covered by any other system, this system covers current and past FDIC employees, contractors, volunteers, visitors, and others involved in the investigation of accidents, injury, criminal conduct, and related civil matters involving the FDIC.
This system contains investigative reports, correspondence and other communications that may include, without limitation, name, home and office address and phone numbers, physical characteristics, vehicle information, and associated information.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
This system of records is used to support the administration and maintenance of a safety and security incident investigation, tracking and reporting system involving FDIC facilities, property, personnel, contractors, volunteers, or visitors.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project; and
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
Chief, Security Operations, Security and Emergency Preparedness Section, Corporate Services Branch, Division of Administration, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The sources of records in this category include current FDIC employees, contractors, members of the public, witnesses, law enforcement officials, medical providers, and other parties providing information to the FDIC to facilitate an inquiry or resolve the complaint.
Certain records contained within this system of records may be exempted from certain provisions of the Privacy Act (5 U.S.C. 552a) pursuant to 5 U.S.C. 552a(c)(3), (d)(5), (e)(1), (e)(4)(G), (H), and (I), (f) and (k).
Unclassified but sensitive.
FDIC Office of Inspector General (OIG), 3501 Fairfax Drive, Arlington, VA 22226. In addition, records are maintained in OIG field offices. OIG field office locations can be obtained by contacting the Assistant Inspector General for Investigations at said address.
Current and former FDIC employees and individuals involved in or associated with FDIC programs and operations including contractors, subcontractors, vendors and other individuals associated with investigative inquiries and investigative cases, including, but not limited to, witnesses, complainants, suspects and those contacting the OIG Hotline.
Investigative files, including memoranda, computer-generated background information, correspondence including payroll records, call records, email records, electronic case management and tracking files, reports of investigations with related exhibits, statements, affidavits, records or other pertinent documents, reports from or to other law enforcement bodies, pertaining to violations or potential violations of criminal laws, fraud, waste, and abuse with respect to administration of FDIC programs and operations, and violations of employee and contractor Standards of Conduct as set forth in section 12(f) of the Federal Deposit Insurance Act (12 U.S.C. 1822(f)), 12 CFR parts 336, 366, and 5 CFR parts 2634, 2635, and 3201. Records in this system may contain personally identifiable information such as names, social security numbers, dates of birth and addresses.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); the Inspector General Act of 1978, as amended (5 U.S.C. app.).
Pursuant to the Inspector General Act, the system is maintained for the purposes of (1) conducting and documenting investigations by the OIG or other investigative agencies regarding FDIC programs and operations in order to determine whether employees or other individuals have been or are engaging in waste, fraud and abuse with respect to the FDIC's programs or operations and reporting the results of investigations to other Federal agencies, other public authorities or professional organizations which have the authority to bring criminal or civil or administrative actions, or to impose other disciplinary sanctions; (2) documenting the outcome of OIG investigations; (3) maintaining a record of the activities which were the subject of investigations; (4) reporting investigative findings to other FDIC components or divisions for their use in operating and evaluating their programs or operations, and in the imposition of civil or administrative sanctions; and (5) acting as a repository and source for information necessary to fulfill the reporting requirements of the Inspector General Act or those of other federal instrumentalities.
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 the FDIC as a routine use as follows:
(1) To the appropriate Federal, State, local, foreign or international agency or authority which has responsibility for
(2) To a court, magistrate, alternative dispute resolution mediator or administrative tribunal (collectively referred to as the adjudicative bodies) in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings (collectively, the litigative proceedings)when the FDIC or OIG is a party to the proceeding or has a significant interest in the proceeding and the information is determined to be relevant and necessary in order for the adjudicatory bodies, or any of them, to perform their official functions in connection with the presentation of evidence relative to the litigative proceedings;
(3) To the FDIC's or another Federal agency's legal representative, including the U.S. Department of Justice or other retained counsel, when the FDIC, OIG or any employee thereof is a party to litigation or administrative proceeding or has a significant interest in the litigation or proceeding to assist those representatives by providing them with information or evidence for use in connection with such litigation or proceedings;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To a grand jury agent pursuant either to a Federal or State grand jury subpoena or to a prosecution request that such record be released for the purpose of its introduction to a grand jury;
(6) To the subjects of an investigation and their representatives during the course of an investigation and to any other person or entity that has or may have information relevant or pertinent to the investigation to the extent necessary to assist in the conduct of the investigation;
(7) To third-party sources during the course of an investigation only such information as determined to be necessary and pertinent to the investigation in order to obtain information or assistance relating to an audit, trial, hearing, or any other authorized activity of the OIG;
(8) To a congressional office in response to a written inquiry made by the congressional office at the request of the individual to whom the records pertain;
(9) To a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary for the FDIC to obtain information concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit;
(10) To a Federal agency responsible for considering suspension or debarment action where such record is determined to be necessary and relevant to that agency's consideration of such action;
(11) To a consultant, person or entity who contracts or subcontracts with the FDIC or OIG, to the extent necessary for the performance of the contract or subcontract. The recipient of the records shall be required to comply with the requirements of the Privacy Act of 1974, as amended (5 U.S.C. 552a);
(12) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for OIG, FDIC or the Federal Government in order to assist those entities or individuals in carrying out their obligation under the related contract, grant, agreement or project;
(13) To the U.S. Office of Personnel Management, Government Accountability Office, Office of Government Ethics, Merit Systems Protection Board, Office of Special Counsel, Equal Employment Opportunity Commission, Department of Justice, Office of Management and Budget or the Federal Labor Relations Authority of records or portions thereof determined to be relevant and necessary to carrying out their authorized functions, including but not limited to a request made in connection with hiring or retaining an employee, rendering advice requested by OIG, issuing a security clearance, reporting an investigation of an employee, reporting an investigation of prohibited personnel practices, letting a contract or issuing a grant, license, or other benefit by the requesting agency, but only to the extent that the information disclosed is necessary and relevant to the requesting agency's decision on the matter;
(14) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(15) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(16) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(17) To a financial institution affected by enforcement activities or reported criminal activities authorities to ascertain the knowledge of or involvement in matters that have been developed during the course of the investigation;
(18) To the Internal Revenue Service and appropriate State and local taxing authorities for their use in enforcing the relevant revenue and taxation law and related official duties;
(19) To other Federal, State or foreign financial institutions supervisory or regulatory authorities for their use in administering their official functions, to include examination, supervision, litigation, and resolution authorities with respect to financial institutions, receiverships, liquidations, conservatorships, and similar functions;
(20) To appropriate Federal agencies and other public authorities for use in records management inspections;
(21) To a governmental, public or professional or self-regulatory licensing organization for use in licensing or related determinations when such record indicates, either by itself or in combination with other information, a violation or potential violation of professional standards, or reflects on the moral, educational, or professional qualifications of an individual who is licensed or who is seeking to become licensed;
(22) To the Department of the Treasury, federal debt collection
(23) To other Federal Offices of Inspector General or other entities for the purpose of conducting quality assessments or peer reviews of the OIG, or its investigative components, or for statistical purposes.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Assistant Inspector General for Investigations, FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity. Note: This system contains records that are exempt under 5 U.S.C. 552a(j)(2), (k)(2) and (k)(5). See “Exemptions Claimed for the System” below.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310. Note: This system contains records that are exempt under 5 U.S.C. 552a(j)(2), (k)(2) and (k)(5). See “Exemptions Claimed for the System” below.
Official records of the FDIC; current and former employees of the FDIC, other government employees, private individuals, vendors, contractors, subcontractors, witnesses and informants. Records in this system may have originated in other FDIC systems of records and subsequently transferred to this system.
This system of records, to the extent that it consists of information compiled for the purpose of criminal investigations, has been exempted from the requirements of subsections (c)(3) and (4); (d); (e)(1), (2) and (3); (e)(4)(G) and (H); (e)(5); (e)(8); (e)(12); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In addition, this system of records, to the extent that it consists of investigatory material compiled: (A) For other law enforcement purposes (except where an individual has been denied any right, privilege, or benefit for which he or she would otherwise be entitled to or eligible for under Federal law, so long as the disclosure of such information would not reveal the identity of a source who furnished information to the FDIC under an express promise that his or her identity would be kept confidential); or (B) solely for purposes of determining suitability, eligibility, or qualifications for Federal civilian employment or Federal contracts, the release of which would reveal the identity of a source who furnished information to the FDIC on a confidential basis, has been exempted from the requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G) and (H); and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2) and (k)(5), respectively. Note, records in this system that originated in another system of records shall be governed by the exemptions claimed for this system as well as any additional exemptions claimed for the other system.
Unclassified but sensitive.
Human Resources Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226, and FDIC Office of Inspector General (OIG), 3501 Fairfax Drive, Arlington, VA 22226.
Individuals filing applications for employment with the FDIC or OIG in response to advertised position vacancy announcements.
Position vacancy announcement information such as position title, series and grade level(s), office and duty location, opening and closing date of the announcement, and dates of referral and return of lists of qualified candidates; applicant personal data such as name, address, other contact information, social security number, sex, veterans' preference and federal competitive status; and applicant qualification and processing information such as qualifications, grade level eligibility, reason for ineligibility, referral status, and dates of notification.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); 5 U.S.C. 1104; and Section 8C(b) of the Inspector General Act, as amended (5 U.S.C. app.).
The records are collected and maintained to monitor and track individuals filing employment applications with the FDIC or OIG and to assess recruiting goals and objectives.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project; and
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
Assistant Director, Information Systems and Services Section, Human Resources Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226; Deputy Assistant Inspector General for Management, Office of Inspector General, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information originates from position vacancy announcements, applications for employment submitted by individuals, and the applicant qualification and processing system.
None.
Unclassified but sensitive.
Division of Finance, FDIC, 3501 Fairfax Drive, Arlington, VA 22226. Records concerning garnishments, attachments, wage assignments and related records concerning FDIC employees are located with the Legal Division, FDIC, 3501 Fairfax Drive, Arlington, VA 22226. Some information, including travel and lodging reservations is collected and maintained, on behalf of the FDIC by SatoTravel Services at 4601 N. Fairfax Drive, Suite 170, Arlington, VA 22203.
Current and former employees; current and former vendors and contractors providing goods and/or services to the FDIC; current and former employees, advisory committee members and others who travel for the FDIC; current and former FDIC customers; and individuals who were depositors or claimants of failed financial institutions for which the FDIC was appointed receiver. Note: Only
This system contains (1) employee payroll, benefit, and disbursement-related records; (2) contractor and vendor invoices and other accounts payable records; (3) customer records related to accounts receivables; (4) payment records for individuals who were depositors or claimants of failed financial institutions for which the FDIC was appointed receiver; and (5) accounting and financial management records. The payroll and/or disbursement records include, without limitation, employees' mailing addresses and home addresses; dependents' names and dates of birth; financial institution account information; social security number and unique employee identification number; rate and amount of pay; tax exemptions; tax deductions for employee payments; and corporate payments information for tax reporting. Records relating to employee, advisory committee and other claims for reimbursement of official travel expenses include, without limitation, travel authorizations, vouchers showing amounts claimed, medical certification and narratives with information about the traveler's medical or physical conditions, exceptions taken as a result of audit, and amounts paid. Other records maintained on employees include reimbursement claims for relocation expenses consisting of authorizations, advances, vouchers of amounts claimed and amounts paid; reimbursement for educational expenses or professional membership dues and licensing fees and similar reimbursements; awards, bonuses, and buyout payments; advances or other funds owed to the FDIC; and garnishments, attachments, wage assignments or related records. Copies of receipts/invoices provided to the FDIC for reimbursement may contain credit card or other identifying account information. Contractor, vendor, and other accounts payable records consist of all documents relating to the purchase of goods and/or services from those individuals including contractual documents, vendor addresses and financial institution account information, vendor invoice statements; amounts paid, and vendor tax identification number. Copies of documentation supporting vendor invoice statements may contain identifying data, such as account number. Customer information is also captured as necessary for the collection of accounts receivable. Payment records for individuals who were depositors or claimants of failed financial institutions for which the FDIC was appointed receiver include name, address, and payment amount; tax id numbers or social security numbers are also included for depositors or claimants when an informational tax return must be filed. The records also include general ledger and detailed trial balances and supporting data. Note: This system includes only records maintained by the FDIC. Associated records maintained by the government travel card issuer are described and covered by the government-wide system of records GSA/GOVT–3 (Travel Charge Card Program).
Sections 9 and 10(a) of the Federal Deposit Insurance Act (12 U.S.C. 1819 and 1820(a)).
The records are maintained for the FDIC and the failed financial institution receiverships managed by the FDIC. The records are used to manage and account for financial transactions and financial activities of the FDIC. The records and associated databases and subsystems provide a data source for the production of reports and documentation for internal and external management reporting associated with the financial operations of the FDIC.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To auditors employed by the U.S. Government Accountability Office;
(11) To the Internal Revenue Service and appropriate State and local taxing authorities;
(12) To vendors, carriers, or other appropriate third parties by the FDIC Office of Inspector General for the purpose of verification, confirmation, or substantiation during the performance of audits or investigations; and
(13) To the Department of the Treasury, federal debt collection centers, other appropriate federal agencies, and private collection contractors or other third parties authorized by law, for the purpose of collecting or assisting in the collection of delinquent debts owed to the FDIC. Disclosure of information contained in these records will be limited to the individual's name, Social Security number, and other information necessary to establish the identity of the individual, and the existence, validity, amount, status and history of the debt.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Director, Division of Finance, FDIC, 3501 Fairfax Drive, Arlington, VA 22226. For records about FDIC employees concerning garnishments, attachments, wage assignments and related records, the system manager is the Legal Division, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The information is obtained from the individual upon whom the record is maintained; other government agencies; contractors; or from another FDIC office maintaining the records in the performance of their duties. Where an employee is subject to a tax lien, a bankruptcy, an attachment, or a wage garnishment, information also is obtained from the appropriate taxing or judicial authority.
None.
Unclassified but sensitive.
Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429; Field Operations Branch, Division of Resolutions and Receiverships, FDIC, 1601 Bryan Street, Dallas, Texas 75201; and at secure sites and on secure servers maintained by third-party service providers for the FDIC.
Individuals who were obligors, obligees, or subject to claims of FDIC-insured financial institutions for which the FDIC was appointed receiver or conservator of FDIC-insured financial institutions that were provided assistance by the FDIC and the FDIC is acting as receiver or conservator of certain of the financial institution's assets. Note: Only records reflecting personal information are subject to the Privacy Act. This system also contains records concerning failed financial institution receiverships, corporations, other business entities, and organizations whose records are not subject to the Privacy Act.
This system contains the individual's files held by the closed or assisted financial institution, including loan or contractual agreements, related documents, and correspondence. The system also contains FDIC asset files, including judgments obtained, restitution orders, and loan deficiencies arising from the liquidation of the obligor's loan asset(s) and associated collateral, if any; information relating to the obligor's financial condition such as financial statements and income tax returns; asset or collateral verifications or searches; appraisals; and potential sources of repayment. FDIC asset files also include intra- or inter-agency memoranda, as well as notes, correspondence, and other documents relating to the liquidation of the loan obligation or asset. FDIC's receivership claims files may include all information related to claims filed with the receivership estate by a failed financial institution's landlords, creditors, service providers or other obligees or claimants. Note: Records held by the FDIC as receiver are a part of this system only to the extent that the state law governing the receivership is not inconsistent or does not otherwise establish specific requirements.
Sections 9, 11, and 13 of the Federal Deposit Insurance Act (12 U.S.C. 1819, 1821, and 1823) and applicable State laws governing the liquidation of assets and wind-up of the affairs of failed financial institutions.
The records are maintained to: (a) Identify and manage loan obligations and assets acquired from failed FDIC-insured financial institutions for which the FDIC was appointed receiver or conservator, or from FDIC-insured financial institutions that were provided assistance by the FDIC; (b) identify, manage and discharge the obligations to creditors, obligees and other claimants of FDIC-insured financial institutions for which the FDIC was appointed receiver or conservator, or of FDIC-
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors or entities performing services for the FDIC in connection with the liquidation of an individual's obligation(s), including judgments and loan deficiencies or in connection with the fulfillment of a claim filed with the FDIC as receiver or liquidator. Third party contractors include, but are not limited to, asset marketing contractors; loan servicers; appraisers; environmental contractors; attorneys retained by the FDIC; collection agencies; auditing or accounting firms retained to assist in an audit or investigation of FDIC's liquidation activities; grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To prospective purchaser(s) of the individual's obligation(s), including judgments and loan deficiencies, for the purpose of informing the prospective purchaser(s) about the nature and quality of the loan obligation(s) to be purchased;
(11) To Federal or State agencies, such as the Internal Revenue Service or State taxation authorities, in the performance of their governmental duties, such as obtaining information regarding income, including the reporting of income resulting from a compromise or write-off of a loan obligation;
(12) To participants in the loan obligation in order to fulfill any contractual or incidental responsibilities in connection with the loan participation agreement;
(13) To the Department of the Treasury, federal debt collection centers, other appropriate federal agencies, and private collection contractors or other third parties authorized by law, for the purpose of collecting or assisting in the collection of delinquent debts owed to the FDIC. Disclosure of information contained in these records will be limited to the individual's name, Social Security number, and other information necessary to establish the identity of the individual, and the existence, validity, amount, status and history of the debt.
(14) To Federal or State agencies or to financial institutions where information is relevant to an application or request by the individual for a loan, grant, financial benefit, or other entitlement;
(15) To Federal or State examiners for the purposes of examining borrowing relationships in operating financial institutions that may be related to an obligation of an individual covered by this system; and
(16) To the individual, the individual's counsel or other representatives, insurance carrier(s) or underwriters of bankers' blanket bonds or other financial institution bonds for failed or assisted FDIC-insured financial institutions in conjunction with claims made by the FDIC or litigation instituted by the FDIC or others on behalf of the FDIC against former officers, directors, accountants, lawyers, consultants, appraisers, or underwriters of bankers' blanket bonds or other financial institution bonds of a failed or assisted FDIC-insured financial institution.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429; and Deputy Director, Field Operations Branch, FDIC, 1601 Bryan Street, Dallas, Texas 75201.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information is obtained from the individual on whom the record is maintained; appraisers retained by the originating financial institution or the FDIC; investigative and/or research companies; credit bureaus and/or services; loan servicers; court records; references named by the individual; attorneys or accountants retained by the originating financial institution or the FDIC; participants in the obligation(s) of the individual; officers and employees of the failed or assisted financial institution; congressional offices that may initiate an inquiry; and other parties providing services to the FDIC in its capacity as liquidator or receiver.
None.
Unclassified but sensitive.
Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429. For administrative purposes, duplicate systems may exist within the FDIC at the duty station of each employee. (See Appendix A for a list of the FDIC regional offices.) The FDIC also has an interagency agreement with the U.S. Department of Agriculture, National Finance Center in New Orleans, Louisiana, to provide and maintain payroll, personnel, and related services and systems involving FDIC employees. The FDIC also has agreements with T. Rowe Price, Benefit Allocation Systems, and other benefit plan contractors to provide employee benefits and related administrative services.
To the extent not covered by any other system, this system covers current and former FDIC employees and their dependents who are enrolled in the FDIC-sponsored Savings Plan, health, life, and other insurance or benefit programs.
This system contains general personnel and enrollment information for the FDIC-sponsored Savings Plan, flexible spending account (FSA) plans and insurance plans (life, dental, vision, or long-term disability). This may include information such as an individual's name, earnings, number and name of dependents, gender, date of birth, home address, social security number, employee locator information (including email and office addresses), claims for FSA reimbursements, and related correspondence.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819) and Executive Order 9397.
The records are collected, maintained and used to support the administration and management of the FDIC personnel benefits programs.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(10) To the Department of Agriculture, National Finance Center to provide personnel, payroll, and related services and systems involving FDIC personnel;
(11) To the Internal Revenue Service and appropriate State and local taxing authorities;
(12) To appropriate Federal agencies to effect salary or administrative offsets, or for other purposes connected with the collection of debts owed to the United States;
(13) To the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purpose of locating individuals to establish paternity, establish and modify orders of child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act, the Federal Parent Locator System and the Federal Tax Offset System;
(14) To the Office of Child Support Enforcement for release to the Social Security Administration for verifying social security numbers in connection with the operation of the Federal Parent Locator System by the Office of Child Support Enforcement;
(15) To the Office of Child Support Enforcement for release to the Department of Treasury for purposes of administering the Earned Income Tax Credit Program and verifying a claim with respect to employment in a tax return;
(16) To Benefit Allocation Systems, T. Rowe Price, and other benefit providers, carriers, vendors, contractors, and agents to process claims and provide related administrative services involving FDIC personnel.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Deputy Director, Human Resources Branch, FDIC Division of Administration, 550 17th Street NW., Washington, DC 20429.
Individuals seeking to determine whether this system of records contains information pertaining to themselves or who are seeking access to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, and comply with the procedures contained in FDIC's Privacy Act regulations, 12 CFR part 310.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The sources of records in this category include the individuals to whom the records pertain and information retrieved from official FDIC records.
None.
Unclassified but sensitive.
Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429, and FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226. For administrative purposes, duplicate systems may exist within the FDIC at the duty station of each employee. (See Appendix A for a list of the FDIC regional offices.) The FDIC also has an interagency agreement with the U.S. Department of Agriculture, National Finance Center in New Orleans, Louisiana, to provide and maintain payroll, personnel, and related services and systems involving FDIC employees.
To the extent not covered by any other system, this system covers current and former FDIC or OIG employees, contractors, and applicants for employment.
This system contains a variety of records relating to personnel actions and determinations made about individuals while employed or seeking employment. These records may contain information about an individual relating to name, birth date, Social Security Number (SSN), personal telephone numbers and addresses, employment applications, background, identity verification and credentials, duty station telephone numbers and addresses, compensation, performance, separation, Internal Revenue Service (IRS) or court-ordered levies, emergency contacts, and related records and correspondence. These records may also contain Equal Employment Opportunity (EEO) group information about FDIC employees, such as race, national origin, sex and disability information. NOTE: Records maintained by the FDIC in the official personnel file are described in the government-wide Privacy Act System Notice known as OPM/GOVT–1 and other government-wide system notices published by the Office of Personnel Management, and are not included within this system.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819),
The records are collected, maintained and used to support the administration and management of the FDIC personnel and benefits programs.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(10) To the Department of Agriculture, National Finance Center to provide personnel, payroll, and related services and systems involving FDIC personnel;
(11) To the Internal Revenue Service and appropriate State and local taxing authorities;
(12) To appropriate Federal agencies to effect salary or administrative offsets, or for other purposes connected with the collection of debts owed to the United States;
(13) To the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purpose of locating individuals to establish paternity, establish and modify orders of child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act, the Federal Parent Locator System and the Federal Tax Offset System;
(14) To the Office of Child Support Enforcement for release to the Social Security Administration for verifying social security numbers in connection with the operation of the Federal Parent Locator System by the Office of Child Support Enforcement;
(15) To the Office of Child Support Enforcement for release to the Department of Treasury for purposes of administering the Earned Income Tax Credit Program and verifying a claim with respect to employment in a tax return.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Deputy Director, Human Resources Branch, FDIC Division of Administration, 550 17th Street NW., Washington, DC 20429; Deputy Assistant Inspector General for Management, Office of Inspector General, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals seeking to determine whether this system of records contains information pertaining to themselves or who are seeking access to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, and comply with the procedures contained in FDIC's Privacy Act regulations, 12 CFR part 310.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such
The sources of records in this category include the individuals to whom the records pertain and information retrieved from official FDIC records.
None.
Unclassified but sensitive.
Division of Risk Management Supervision, Risk Management Policy and Exam Oversight Branch, FDIC, 550 17th Street NW., Washington, DC 20429.
(1) Persons who are or seek to be associated with municipal securities brokers or municipal securities dealers which are FDIC-insured, state-chartered financial institutions (including insured state-licensed branches of foreign financial institutions), not members of the Federal Reserve System, or are subsidiaries, departments, or divisions of such financial institutions;
(2) Persons who are or seek to be persons associated with U.S. Government securities dealers or brokers which are FDIC-insured state-chartered financial institutions, other than members of the Federal Reserve System.
The records contain identifying information, detailed educational and employment histories, examination information, disciplinary information, if any, and information concerning the termination of employment of individuals covered by the system. Identifying information includes name, address, date and place of birth, and may include social security number.
Sections 15B(c), 15C, and 23 of the Securities Exchange Act of 1934 (15 U.S.C. 78o–4, 78o–5, and 78q and 78w); and Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The records are maintained to comply with the registration requirements of municipal securities dealers, municipal securities representatives, and U.S. Government securities brokers or dealers and associated persons contained in the Securities Exchange Act of 1934 and to support the FDIC's regulatory and supervisory functions.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To the appropriate Federal, State, local, or foreign agency or authority or to the appropriate self-regulatory organization, as defined in section 3(a)(26) of the Securities Exchange Act of 1934 (15 U.S.C. 78c (a)(26)), to the extent disclosure is determined to be necessary and pertinent for investigating or prosecuting a violation of or for enforcing or implementing a statute, rule, regulation, or order, when the information by itself or together with additional information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or regulation, rule or order issued pursuant thereto;
(11) To assist in any proceeding in which the Federal securities or banking laws are in issue or a proceeding involving the propriety of a disclosure of information contained in this system, in which the FDIC or one of its past or present employees is a party, to the extent that the information is relevant to the proceeding;
(12) To a Federal, State, local, or foreign governmental authority or a self-regulatory organization if necessary in order to obtain information relevant to an FDIC inquiry concerning a person who is or seeks to be associated with a municipal securities dealer as a municipal securities principal or representative or a U.S. Government securities broker or a U.S. Government securities dealer;
(13) To a Federal, State, local, or foreign governmental authority or a self-
(14) To a registered dealer, registered broker, registered municipal securities dealer, U.S. Government securities dealer, U.S. Government securities broker, or an insured financial institution that is a past or present employer of an individual that is the subject of a record, or to which such individual has applied for employment, for purposes of identity verification or for purposes of investigating the qualifications of the subject individual.
Examination Specialist, Risk Management Policy and Exam Oversight Branch, Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Individuals on whom the records are maintained, municipal securities dealers and U.S. Government securities dealers and brokers (as such dealers are described in “Categories of Individuals Covered by the System” above), and Federal, State, local, and foreign governmental authorities and self-regulatory organizations or agencies which regulate the securities industry.
None.
Employee Medical and Health Assessment Records.
Unclassified but sensitive.
Health Unit, Corporate Services Branch, Division of Administration, FDIC, located at the following addresses: 550 17th Street NW., Washington, DC 20429; 3501 Fairfax Drive, Arlington, VA 22226; 1310 Courthouse Road, Arlington VA 22226; and Health Units located in FDIC regional offices; and FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226. (See
All current and former FDIC and OIG employees and other individuals who seek information, treatment, medical accommodations, participate in health screening programs administered by the FDIC, or file claims seeking benefits under the Federal Employees' Compensation Act.
Medical records of the employee, including name, age, height, weight, history of certain medical conditions, health screening records; dates of visits to the FDIC Health Unit, diagnoses, and treatments administered; ergonomic reviews and assessments; the name and telephone number of the person to contact in the event of a medical emergency involving the employee; and reports of injury or illness while in the performance of duty. The system used by the Office of Inspector General contains the results of physical and other medical examinations of OIG employees. Note: This system includes only records maintained by the FDIC. Associated records, if any, are described and covered by the Office of Personnel Management government-wide system of records OPM/GOVT–10 (Employee Medical File System Records) or the Department of Labor government-wide system of records DOL/GOVT–1 (Office of Workers' Compensation Programs, Federal Employees' Compensation Act File).
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); and Sections 4(b), 6(e), and 8C(b) of the Inspector General Act, as amended (5 U.S.C. app.).
The records are collected and maintained to identify potential health issues and concerns of an individual, to identify and collect information with respect to claims for injury or illness while in the performance of duty, medical conditions reported by an individual to the FDIC Health Unit, and to identify necessary contacts in the event of a medical emergency involving the covered individual. The records collected and maintained by the Office of Inspector General are used to determine compliance with Office of Inspector General policies.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To the appropriate Federal, State or local agency when necessary to adjudicate a claim (filed by or on behalf of the individual) under the Federal Employees Compensation Act, 5 U.S.C. 8101
(11) To a Federal, State, or local agency to the extent necessary to comply with laws governing reporting of communicable disease;
(12) To health or life insurance carriers contracting with the FDIC to provide life insurance or to provide health benefits plan, such information necessary to verify eligibility for payment of a claim for life or health benefits;
(13) To a Health Unit or occupational safety and health contractors, including contract nurses, industrial hygienists, and others retained for the purpose of performing any function associated with the operation of the Health Unit; and
(14) To the person designated on the appropriate form as the individual to contact in the event of a medical emergency of the employee.
Health, Safety and Environmental Program Manager, Corporate Services Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226; Deputy Assistant Inspector General for Management, Office of Inspector General, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The records are compiled during the course of a visit to the Health Unit for treatment, participation in a health screening program, in the performance of accident/incident investigations, or if the individual requests an ergonomic assessment or health or medical accommodation. OIG employees also provide the results of physical and other medical examinations required for compliance with Office of Inspector General policies.
None.
Unclassified but sensitive.
Human Resources Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226; and FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226. Records at the regional level generated through grievance procedures negotiated with recognized labor organizations are located in the FDIC regional office where originated (See Appendix A for a list of the FDIC regional offices and their addresses). For non-headquarters employees, duplicate copies may be maintained by the Human Resources Branch, Division of Administration, Arlington, VA for the purpose of coordinating grievance and arbitration proceedings.
Current or former FDIC or OIG employees who have submitted grievances in accordance with part 771 of the United States Office of Personnel Management's regulations (5 CFR part 771) or a negotiated grievance procedure.
The system contains records relating to grievances filed by FDIC employees
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); the Inspector General Act, as amended (5 U.S.C. app.); 5 U.S.C. 7121; 5 CFR part 771.
The information contained in this system is used to make determinations and document decisions made on filed grievances and settle matters of dissatisfaction or concern of covered individuals. Information from this system may be used for preparing statistical summary or management reports.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To any source during the course of an investigation only such information as determined to be necessary and pertinent to process a grievance, to the extent necessary to identify the individual, inform the source of the purpose(s) of the request and identify the type of information requested.
Deputy Director of Personnel, Human Resources Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226; Deputy Assistant Inspector General for Management, Office of Inspector General, FDIC, 3501 Fairfax Drive, Arlington, VA 22226. The appropriate FDIC Regional Director for records maintained in FDIC regional offices (see Appendix A for a list of the FDIC regional offices and their addresses).
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information in this system is provided: (1) By the individual on whom the record is maintained; (2) by
None.
Unclassified but sensitive.
Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429; and Field Operations Branch, Division of Resolutions and Receiverships, FDIC, 1601 Bryan Street, Dallas, Texas 75201.
Individuals who have purchased or submitted written notice of an interest in purchasing loans, owned real estate, securities, or other assets from the FDIC.
Contains the individual's name, address, telephone number and electronic mail address, if available; information as to the kind or category and general geographic location of loans or owned real estate that the individual may be interested in purchasing; and information relating to whether any bids have been submitted on prior sales.
Sections 9, 11 and 13 of the Federal Deposit Insurance Act (12 U.S.C. 1819, 1821 and 1823).
The system collects, identifies and maintains information about potential purchasers of assets (primarily loans and owned real estate) from the FDIC. The information is utilized by the FDIC in the marketing of assets, to identify qualified potential purchasers and to solicit bids for assets. The information in this system is used to support the FDIC's liquidation/receivership functions.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To other Federal or State agencies and to contractors to assist in the marketing and sale of loans, real estate, or other assets held by the FDIC.
Director, Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information is obtained from the individual about whom the record is maintained.
None.
Unclassified but sensitive.
Division of Information Technology, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals assigned telephone numbers by the FDIC, including current and former FDIC employees and contractor personnel, who make local and long distance telephone calls and individuals who receive telephone calls placed from or charged to FDIC telephones.
Records, including telephone number, location, dates and duration of telephone calls relating to use of FDIC telephones to place or receive long distance and local calls, and records indicating assignment of telephone numbers to individuals covered by the system.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The records in this system are maintained to identify and make a record of all telephone calls placed to or from FDIC telephones and enable the FDIC to analyze call detail information for verifying call usage; to determine responsibility for placement of specific long distance calls; and for detecting possible abuse of the FDIC-provided long distance telephone network.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To current and former FDIC employees and other individuals currently or formerly provided telephone services by the FDIC to determine their individual responsibility for telephone calls;
(11) To a telecommunications company providing telecommunications support to permit servicing the account; and
(12) To the Department of the Treasury, federal debt collection centers, other appropriate federal agencies, and private collection contractors or other third parties authorized by law, for the purpose of collecting or assisting in the collection of delinquent debts owed to the FDIC. Disclosure of information contained in these records will be limited to the individual's name and other information necessary to establish the identity of the individual, and the existence, validity, amount, status and history of the debt.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
Assistant Director, Infrastructure Services Branch, Division of Information Technology, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Telephone assignment records and call detail listings.
None.
Unclassified but sensitive.
Fitness Centers, Corporate Services Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226, and 550 17th Street NW., Washington, DC 20429.
FDIC employees who apply for membership and participate in the Fitness Centers.
Contains the individual's name, gender, age; fitness assessment results; identification of certain medical conditions; and the name and phone number of the individual's personal physician and emergency contact.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The records are collected and maintained to control access to the fitness center; to enable the Fitness Centers' contractor to identify any potential health issues or concerns and the fitness level of an individual; and to identify necessary contacts in the event of a medical emergency while the individual is participating in a fitness activity.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(10) To the individuals listed as emergency contacts or the individual's personal physician, in the event of a medical emergency; and
(11) To a Health Unit or occupational safety and health contractors, including contract nurses, industrial hygienists, and others retained for the purpose of performing any function associated with the operation of the Fitness Centers.
Health, Safety and Environmental Program Manager, Acquisition and Corporate Services Branch, Division of Administration, FDIC, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information is principally obtained from the individual who has applied for membership and Fitness Center personnel. Some information may be provided by the individual's personal physician.
None.
Unclassified but sensitive.
Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals who submit requests and administrative appeals pursuant to the provisions of the Freedom of Information Act (FOIA) or the Privacy Act; individuals whose requests, appeals or other records have been referred to FDIC by other agencies; attorneys or other persons authorized to represent individuals submitting requests and appeals; individuals who are the subjects of such requests; and FDIC personnel assigned to process such requests or appeals.
Records in the system may contain requesters' and their attorneys' or representatives' names, addresses, email addresses, telephone numbers; online identity verification information (username and password); and any other information voluntarily submitted, such as an individual's social security number; tracking numbers; correspondence with the requester or others representing the requester; internal FDIC correspondence and memoranda to or from other agencies having a substantial interest in the determination of the request; responses to the request and appeals; and copies of responsive records. These records may contain personal information retrieved in response to a request. Note—FOIA and Privacy Act case records may contain inquiries and requests regarding any of the FDIC's other systems of records subject to the FOIA and Privacy Act, and information about individuals from any of these other systems may become part of this system of records.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); Freedom of Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a), 12 CFR parts 309 and 310.
The records are collected and maintained to process requests made under the provisions of the FOIA and Privacy Act and to assist the FDIC in carrying out any other responsibilities relating to the FOIA and Privacy Act.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal agencies and other public authorities for use in records management inspections;
(6) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(7) To another Federal government agency having a substantial interest in the determination of the request or for the purpose of consulting with that agency as to the propriety of access or correction of the record in order to complete the processing of requests; and
(8) To a third party authorized in writing to receive such information by the individual about whom the information pertains.
Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Requesters and persons acting on behalf of requesters, FDIC offices and divisions, other Federal agencies having a substantial interest in the determination of the request, and employees processing the requests.
The FDIC has claimed exemptions for several of its other systems of records under 5 U.S.C. 552a (j)(2), (k)(1), (k)(2), and (k)(5) and 12 CFR part 310.13. During the processing of a Freedom of Information Act or Privacy Act request, exempt records from these other systems of records may become part of the case record in this system of records. To the extent that exempt records from other FDIC systems of records are entered or become part of this system, the FDIC has claimed the same exemptions, and any such records compiled in this system of records from any other system of records continues to be subject to any exemption(s) applicable for the records as they have in the primary systems of records of which they are a part.
Unclassified but sensitive.
Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429.
Purchasers and prospective purchasers of residential properties offered for sale through the FDIC's Affordable Housing Program. Note: To be considered a prospective purchaser for purposes of this record system, the individual must have: (1) Completed and signed an FDIC “Certification of Income Eligibility;” and (2) delivered the form to an authorized representative of the FDIC's Affordable Housing Program.
Contains the purchaser's or prospective purchaser's income qualification form and substantiating documents (such as personal financial statements, income tax returns, asset or collateral verifications, appraisals, and sources of income); copies of sales contracts, deeds, or other recorded instruments; intra-agency forms, memoranda, or notes related to the property and purchaser's participation in the FDIC's Affordable Housing Program; correspondence; and other documents related to the FDIC's Affordable Housing Program.
Sections 9, 11, 13, and 40 of the Federal Deposit Insurance Act (12 U.S.C. 1819, 1821, 1823, 1831q).
The records are collected and maintained to determine and verify eligibility of individuals' to participate in the FDIC Affordable Housing Program and to monitor compliance by individuals with purchaser income restrictions. The information in the system supports the FDIC's liquidation of qualifying residential housing units and the FDIC's goal to provide home ownership for low-income and moderate-income families.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions; and
(10) To mortgage companies, financial institutions, federal agencies (such as the Federal Housing Administration, the Housing and Urban Development Agency, the Farm Service Agency, and the Veterans Administration), or state and local government housing agencies where information is determined to be relevant to an application or request for a loan, grant, financial benefit, or other type of assistance or entitlement.
Supervisory Resolutions and Receiverships Specialist, Operations Branch, Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information is obtained from the individual seeking to participate in the FDIC's Affordable Housing Program. Information pertaining to an individual may, in some cases, be supplemented with reports from credit bureaus and/or similar credit reporting services.
None.
Unclaimed Deposit Account Records.
Unclassified but sensitive.
Division of Resolutions and Receiverships, Field Operations Branch, FDIC, 1601 Bryan Street, Dallas, Texas 75201.
Individuals identified as deposit account owners of unclaimed insured deposits of a closed insured depository institution for which the FDIC was appointed receiver after January 1, 1989.
Deposit account records, including signature cards, last known home address, social security number, name of insured depository institution, relating to unclaimed insured deposits or insured transferred deposits from closed insured depository institutions for which the FDIC was appointed receiver after January 1, 1989.
Sections 9, 11, and 12 of the Federal Deposit Insurance Act (12 U.S.C. 1819, 1821, and 1822).
The information in this system is used to process inquiries and claims of individuals with respect to unclaimed insured deposit accounts of closed insured depository institutions for which the FDIC was appointed receiver after January 1, 1989, and to assist in complying with the requirements of the Unclaimed Deposits Amendments Act.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project; and
(10) To the appropriate State agency accepting custody of unclaimed insured deposits.
Assistant Director, Field Operations Branch, Division of Resolutions and Receiverships, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information originates from deposit records of closed insured depository institutions and claimants. Records of unclaimed transferred deposits are provided to the FDIC from assuming depository institutions to which the FDIC transferred deposits upon closing of the depository institution.
None.
Unclassified but sensitive.
Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
(1) Any director or officer of an FDIC-insured depository institution with a class of equity securities registered pursuant to section 12 of the Securities Exchange Act of 1934, and (2) Any person who is directly or indirectly the beneficial owner of greater than 10% of a class of equity securities issued by an FDIC-insured depository institution that are registered under section 12 of the Securities Exchange Act of 1934; including any trust, trustee, beneficiary or settlor required to report pursuant to Securities and Exchange Commission Rule 16a–8.
Reporting persons submit electronically or on paper reports on any of the following three forms: “Initial Statement of Beneficial Ownership of Securities,” “Statement of Changes in Beneficial Ownership of Securities” and “Annual Statement of Beneficial Ownership of Securities.” Reporting persons are required to use these forms to disclose ownership and transactional information relative to their beneficial ownership of securities of FDIC-insured depository institutions with securities registered under the Securities Exchange Act of 1934. Under section 403 of the Sarbanes-Oxley Act of 2002, these forms must be submitted in electronic form and must be made available to the public on a Federal agency's external internet Web site. The forms require disclosure of the name of the financial institution, relationship of reporting person to the financial institution, reporting person's name and
Sections 12(i) and 16(a) of the Securities Exchange Act of 1934 (respectively, 15 U.S.C. 78l(i) and 78p(a)).
In accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended by section 403 of the Sarbanes-Oxley Act of 2002, this information is being made available to the public on the FDIC's external internet Web site in order to facilitate the more efficient transmission, dissemination, analysis, storage and retrieval of insider ownership and transaction information in a manner that will benefit investors, filers and financial institution regulatory agencies.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(8) To appropriate Federal agencies and other public authorities for use in records management inspections;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project; and
(10) To the appropriate governmental or self-regulatory organizations when relevant to the organization's regulatory or supervisory responsibilities or if the information is relevant to a known or suspected violation of a law or licensing standard within that organization's jurisdiction.
Chief, Accounting & Securities Disclosure Section, Division of Risk Management Supervision, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information originates from (1) any director or officer of an FDIC-insured depository institution with a class of equity securities registered pursuant to section 12 of the Securities Exchange Act of 1934; and (2) any beneficial owner of greater than 10% of an FDIC- insured depository institution with a class of equity securities registered under the Securities Exchange Act of 1934, including any trust, trustee, beneficiary or settlor required to report pursuant to SEC Rule 16a–8.
None.
Unclassified but sensitive.
Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429 and the FDIC regional or area offices. (See Appendix A for a list of the FDIC regional offices.) Records for FDIC Headquarters and all regional and area offices are also housed electronically at the U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590.
To the extent not covered by any other system, this system covers employees who apply for and receive transit subsidy program benefits.
The system contains completed transit subsidy application forms (FDIC Form 3440). The applications include, but are not limited to, the applicant's name, home address, title, grade, Division, Office, work hours, room and telephone numbers, commuting schedule, and transit system(s) used.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The records are used to administer the FDIC transit subsidy program.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project.
Chief, Transportation Unit, Security and Emergency Preparedness Section, Corporate Services Branch, Division of Administration, 3501 Fairfax Dr., Arlington, VA 22226.
Individuals seeking to determine whether this system of records contains information pertaining to themselves or who are seeking access to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, and comply with the procedures contained in FDIC's Privacy Act regulations, 12 CFR 310.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR 310.
The sources of records in this category include the individuals to whom the records pertain and information taken from official FDIC records.
None.
Unclassified but sensitive.
Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429 and regional offices with FDIC parking facilities. (See Appendix A for a list of the FDIC regional offices.)
To the extent not covered by any other system, this system covers employees and others who have applied for and/or been issued a parking permit for the use of FDIC parking facilities; individuals who car-pool with employees holding such permits; and employees interested in joining a car pool.
The system contains completed parking application forms (FDIC Forms 3410), car pool information, disability parking applications, special parking authorizations, and visitor parking requests. The information includes, but is not limited to, the applicant's name, home address, title, grade, make, year and license number of vehicle, Division, Office, work hours, room and telephone numbers, and arrival/departure times.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The records are used to administer the parking program, to allocate the limited number of parking spaces in the FDIC parking facilities among employees and visitors, to facilitate the formation of car pools with employees who have been issued parking permits, and to provide for the safe use of FDIC facilities.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy At, all or a portion of the records or information contained in this system may be disclosed outside the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project.
Chief, Transportation Unit, Security and Emergency Preparedness Section, Corporate Services Branch, Division of Administration, 3501 Fairfax Dr., Arlington, VA 22226.
Individuals seeking to determine whether this system of records contains information pertaining to themselves or who are seeking access to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, and comply with the procedures contained in FDIC's Privacy Act regulations, 12 CFR part 310.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
The sources of records in this category include the individuals to whom the records pertain, information retrieved from official FDIC records, or information from other agency parking records.
None.
Unclassified but sensitive.
FDIC, Office of Legislative Affairs, 550 17th Street NW., Washington, DC 20429.
Individuals who correspond to, or receive correspondence from, the Office of the Chairman; and individuals who are the subject of correspondence to or from the Office of the Chairman.
Contains correspondence, memoranda, Email, and other communications with the Office of the Chairman that may include, without limitation, name and contact information supplied by the individual as well as information concerning subject matter, internal office assignments, processing, and final response or other disposition.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
This system of records is used to document and respond to correspondence addressed to the FDIC, Office of the Chairman.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To an insured depository institution which is the subject of an inquiry or complaint when necessary to investigate or resolve the inquiry or complaint; and
(10) To the primary Federal or State financial regulator of an insured depository institution that is the subject of an inquiry or complaint.
Office of Legislative Affairs, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information maintained in this system is obtained from individuals who submit correspondence to the FDIC for response, and FDIC personnel.
None.
Unclassified but sensitive.
FDIC, Office of Legislative Affairs, 550 17th Street NW., Washington, DC 20429.
Current and former Members of the U.S. Congress and Congressional staff; and individuals whose inquiries relating to FDIC activities are forwarded by Members of Congress or Congressional staff to the FDIC for response.
Contains correspondence from Members of the U.S. Congress or Congressional staff making inquiries or transmitting inquiries, correspondence or documents from constituents that may include, without limitation, name and contact information as well as information concerning subject matter, internal office assignments, processing, and final response or other disposition.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
This system of records is used to document and respond to constituent and other inquiries forwarded by Members of the U.S. Congress or Congressional staff.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To an insured depository institution which is the subject of an inquiry or complaint when necessary to investigate or resolve the inquiry or complaint;
(10) To the primary Federal or State financial regulator of an insured depository institution that is the subject of an inquiry or complaint; and
(11) To authorized third-party sources during the course of the investigation in order to resolve the inquiry or complaint. Information that may be disclosed under this routine use is limited to the name of the inquirer or complainant and the nature of the inquiry or complaint and such additional information necessary to investigate the inquiry or complaint.
Office of Legislative Affairs, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information maintained in this system is obtained from individuals who submit correspondence to the FDIC for response, and FDIC personnel.
None.
Unclassified but sensitive.
FDIC, Office of Legislative Affairs, 550 17th Street NW., Washington, DC 20429.
Current and former Members of the U.S. Congress and Congressional staff; and individuals who contact, or are contacted by the FDIC Office of Legislative Affairs.
Contains memoranda, email and other communications with the Office of Legislative Affairs that may include without limitation, name and contact information supplied by the individual as well as information related to the inquiry that was developed by FDIC staff.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
This system of records is used to document and respond to inquiries regarding FDIC's views on proposed legislation, facilitate Congressional briefings, and coordinate preparation of FDIC responses to constituent inquiries.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(9) To an insured depository institution which is the subject of an inquiry or complaint when necessary to investigate or resolve the inquiry or complaint;
(10) To the primary Federal or State financial regulator of an insured depository institution that is the subject of an inquiry or complaint; and
(11) To authorized third-party sources during the course of the investigation in order to resolve the inquiry or complaint. Information that may be disclosed under this routine use is limited to the name of the inquirer or complainant and the nature of the inquiry or complaint and such additional information necessary to investigate the inquiry or complaint.
Director, Office of Legislative Affairs, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information maintained in this system is obtained from individuals who contact the FDIC for response, and FDIC personnel.
None.
Unclassified but sensitive.
These electronic records are collected in a web-based system located at a secure site and on secure servers maintained by a contractor for the FDIC, Division of Administration, 550 17th Street NW., Washington, DC 20429.
Individuals who make an online order for publications, products, or other materials from the FDIC.
Contains names, business or organization affiliations, addresses, phone numbers, fax numbers, email addresses, order history, login information (username, user ID, and password), fulfillment information (shipping and delivery instructions), and other contact information provided by individuals covered by this system.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
This system of records is used to organize and process orders for publications, products, or other materials offered by the FDIC.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal agencies and other public authorities for use in records management inspections;
(6) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
Assistant Director, Library & Public Information Center, Corporate Services Branch, Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310.
Information maintained in this system is obtained from individuals who contact the FDIC, FDIC personnel, and contractors.
None.
Unclassified but sensitive.
Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429; FDIC regional or area offices (See Appendix A for a list of the FDIC regional offices and their addresses); and at a secure site and on secure web-based servers maintained by a contractor for the FDIC.
Current FDIC employees, contractors, and other registered users.
The system includes individual contact information including name, personal telephone numbers, personal email addresses, official business phone number, and official business email address.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819).
The system provides for multiple communication device notification to registered FDIC personnel during and after local, regional or national emergency events and security incidents, disseminates time sensitive information, provide personnel accountability and status during emergency events, and conduct communication tests. The system also provides for the receipt of real-time message acknowledgements and related management reports.
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 the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To appropriate Federal agencies and other public authorities for use in records management inspections;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project; and
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
Associate Director, FDIC Division of Administration, Security and Emergency Preparedness Section, 550 17th Street NW., Washington, DC 20429.
Individuals seeking to determine whether this system of records contains information pertaining to themselves or who are seeking access to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, and comply with the procedures contained in FDIC's Privacy Act regulations, 12 CFR 310.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system of records should specify the information being contested, their reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR 310.
The sources of records in this category include the individuals to whom the records pertain and information taken from official FDIC records.
None.
Unclassified but sensitive.
FDIC Office of Inspector General (OIG), 3501 Fairfax Drive, Arlington, VA 22226.
Individuals—including, but not limited to, members of the public, the media, contractors and subcontractors, Congressional sources, and employees of the FDIC or of other governmental agencies—who communicate with the Office of Inspector General (OIG) through written or electronic correspondence or telephonically including the OIG Hotline. The system also includes individuals who receive correspondence from OIG and those who are the subject of correspondence to or from OIG.
Contains communications such as correspondence, memoranda, email records, call records, voicemail, faxes, other electronic or digital communications, and additional documentation supplied by the source of the records to include other FDIC, congressional, and other executive branch sources. Records provided by the source may include personally identifiable information including name, addresses, email addresses, telephone numbers, and any other information voluntarily submitted such as Social Security Number, as well as information developed by OIG, such as
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); the Inspector General Act of 1978, as amended (5 U.S.C. app.).
This system of records is used to document and respond to correspondence addressed or directed to FDIC OIG; to track the receipt and disposition of correspondence; and to act as a means of referring allegations of illegality, fraud and abuse to the OIG investigative function.
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 the FDIC as a routine use as follows:
(1) To the appropriate Federal, State, local, foreign or international agency or authority which has responsibility for investigating or prosecuting a violation of or for enforcing or implementing a statute, rule, regulation, or order to assist such agency or authority in fulfilling these responsibilities when the record, either by itself or in combination with other information, 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 by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, alternative dispute resolution mediator or administrative tribunal (collectively referred to as the adjudicative bodies) in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings (collectively, the litigative proceedings) when the FDIC or OIG is a party to the proceeding or has a significant interest in the proceeding and the information is determined to be relevant and necessary in order for the adjudicatory bodies, or any of them, to perform their official functions in connection with the presentation of evidence relative to the litigative proceedings;
(3) To a congressional office in response to a written inquiry made by the congressional office at the request of the individual to whom the records pertain;
(4) To appropriate Federal, State, local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of information in the system has been compromised; (b) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
(5) To the FDIC's or another Federal agency's legal representative, including the U.S. Department of Justice or other retained counsel, when the FDIC, OIG or any employee thereof is a party to litigation or administrative proceeding or has a significant interest in the litigation or proceeding to assist those representatives by providing them with information or evidence for use in connection with such litigation or proceedings;
(6) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(7) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals if needed in the performance of these or other authorized duties;
(8) To appropriate Federal agencies and other public authorities for use in records management inspections;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the OIG, FDIC or Federal Government in order to assist those entities or individuals in carrying out their obligations under the related contract, grant, agreement or project;
(10) To a financial institution (whether or not FDIC-insured, but subject to the FDIC's examination, supervision and/or resolution authority) which is the subject of an inquiry or complaint when necessary to investigate or resolve the inquiry or complaint;
(11) To the primary Federal or State financial regulator of a financial institution (whether or not FDIC-insured, but subject to the FDIC's examination, supervision and/or resolution authority) that is the subject of an inquiry or complaint in order to resolve the inquiry or complaint;
(12) To third-party sources, as authorized by OIG or the FDIC, during the course of the investigation in order to resolve the inquiry or complaint. Information that may be disclosed under this routine use is limited to the name of the inquirer or complainant and the nature of the inquiry or complaint and such additional information necessary to investigate the inquiry or complaint;
(13) To the U.S. Office of Personnel Management, Government Accountability Office, Office of Government Ethics, Merit Systems Protection Board, Office of Special Counsel, Equal Employment Opportunity Commission, Department of Justice, Office of Management and Budget or the Federal Labor Relations Authority of records or portions thereof determined to be relevant and necessary to carrying out their authorized functions, including but not limited to a request made in connection with hiring or retaining an employee, rendering advice requested by OIG, issuing a security clearance, reporting an investigation of an employee, reporting an investigation of prohibited personnel practices, letting a contract or issuing a grant, license, or other benefit by the requesting agency, but only to the extent that the information disclosed is necessary and relevant to the requesting agency's decision on the matter;
(14) To other Federal Offices of Inspector General or other entities for the purpose of conducting quality assessments or peer reviews of the OIG, or its investigative components, or for statistical purposes; and
(15) To a Federal agency responsible for considering suspension or debarment action where such a record is determined to be necessary and relevant.
Pursuant to 5 U.S.C. 552a(b)(12), disclosures may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
FDIC Inspector General, 3501 Fairfax Drive, Arlington, VA 22226.
Individuals wishing to determine if they are named in this system of records or who are seeking access or amendment to records maintained in this system of records must submit their request in writing to the Legal Division, FOIA & Privacy Act Group, FDIC, 550 17th Street NW., Washington, DC 20429, in accordance with FDIC regulations at 12 CFR part 310. Individuals requesting their records must provide their name, address and a notarized statement attesting to their identity. Note: Records transferred from this system to the OIG investigative function are subject to the exemptions claimed under FDIC–30–64–0010, Investigative Files of the Office of Inspector General. See “Exemptions Claimed for the System” below.
See “Notification Procedure” above.
See “Notification Procedure” above. Individuals wishing to contest or amend information maintained in this system should specify the information being contested, the reasons for contesting it, and the proposed amendment to such information in accordance with FDIC regulations at 12 CFR part 310. Note: Records transferred from this system to the OIG investigative function are subject to the exemptions claimed under FDIC–30–64–0010, Investigative Files of the Office of Inspector General. See “Exemptions Claimed for the System” below.
Official records of the FDIC; current and former employees of the FDIC, other government employees, private individuals, vendors, contractors, subcontractors, witnesses and informants.
None. Records transferred from this system to the OIG investigative function are subject to the exemptions claimed under FDIC–30–64–0010, Investigative Files of the Office of Inspector General.
Unclassified but sensitive.
The Division of Administration, FDIC, 550 17th Street NW., Washington, DC 20429, and the FDIC regional or area offices. (See
This system covers all FDIC employees, contractors, and other individuals who have applied for, been issued, and/or used a Personal Identity Verification (PIV) card for access to FDIC or other federal facilities.
This system includes all information submitted during application for the PIV card and any resulting investigative and adjudicative documentation required to establish and verify the identity and background of each individual issued a PIV card. The system includes, but is not limited to, the applicant's name, social security number, date and place of birth, hair and eye color, height, weight, ethnicity, status as Federal or contractor employee, employee ID number, email, biometric identifiers including fingerprints, digital color photograph, user access rights, and data from source documents used to positively identify the applicant, including passport and Form I–9 documents.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); Executive Order 9397; and Homeland Security Presidential Directive (HSPD) 12, Policy for a Common Identification Standard for Federal Employees and Contractors.
The primary purpose of the system is to manage the safety and security of FDIC and other federal facilities, as well as the occupants of those facilities.
In addition to those disclosures generally permitted under the Privacy Act, 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the FDIC as a routine use as follows:
(1) To appropriate Federal, State, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when the FDIC is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary;
(3) To a congressional office in response to an inquiry made by the congressional office at the request of the individual who is the subject of the record;
(4) To appropriate Federal, State, and local authorities, and other entities when (a) it is suspected or confirmed that the security or confidentiality of
(5) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(6) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(7) To appropriate Federal agencies and other public authorities for use in records management inspections;
(8) To officials of a labor organization when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions;
(9) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC, the Office of Inspector General, or the Federal Government for use in carrying out their obligations under such contract, grant, agreement or project;
(10) To notify another Federal agency when, or verify whether, a PIV card is no longer valid.
Chief, Security Operations, Security and Emergency Preparedness Section, Corporate Services Branch, Division of Administration, 3501 Fairfax Dr., Arlington, VA 22226.
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Fish and Wildlife Service, Interior.
Proposed rule.
The U.S. Fish and Wildlife Service (Service) proposes to amend its regulations to add to the list of injurious fish the following freshwater fish species: Crucian carp (
Comments will be considered if received on or before December 29, 2015.
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Comments will not be accepted by email or faxes. All comments will be posted on
Susan Jewell, U.S. Fish and Wildlife Service, MS–FAC, 5275 Leesburg Pike, Falls Church, VA 22041–3803; 703–358–2416. If a telecommunications device for the deaf (TDD) is required, please call the Federal Information Relay Service (FIRS) at 800–877–8339.
The U.S. Fish and Wildlife Service (Service) proposes to amend its regulations to add to the list of injurious fish the following nonnative freshwater fish species: Crucian carp, Eurasian minnow, Prussian carp, roach, stone moroko, Nile perch, Amur sleeper, European perch, zander, and wels catfish. In addition, the Service proposes to amend its regulations to add the common yabby, a nonnative freshwater crayfish species, to the list of injurious crustaceans. These listings would prohibit the importation of any live animal, gamete, viable egg, or hybrid of these 10 fish and 1 crayfish (11 species) into the United States, except as specifically authorized. These listings would also prohibit the interstate transportation of any live animal, gamete, viable egg, or hybrid of these 10 fish and 1 crayfish, except as specifically authorized. If the proposed rule is made final, importation and interstate transportation of any live animal, gamete, viable egg, or hybrid of these 10 fish and 1 crayfish could be authorized only by permit for scientific, medical, educational, or zoological purposes, or without a permit by Federal agencies solely for their own use. This action is necessary to protect human beings and the interests of agriculture, wildlife, or wildlife resources from the purposeful or accidental introduction and subsequent establishment of these 11 species into ecosystems of the United States.
The need for the proposed action to add 11 nonnative species to the list of injurious wildlife under the Lacey Act developed from the Service's concern that, through our rapid screen process, these 11 species were categorized as “high risk” for invasiveness. All 11 species have a high climate match in parts of the United States, a history of invasiveness outside their native ranges, and, except for one fish species in one lake, are not currently found in U.S. ecosystems. Nine of the freshwater fish species (Amur sleeper, crucian carp, Eurasian minnow, European perch, Prussian carp, roach, stone moroko, wels catfish, and zander) have been introduced to and established populations within Europe and Asia, where they have spread and are causing harm. The Nile perch has been introduced to and become invasive in central Africa. The freshwater crayfish, the common yabby, has been introduced to western Australia and to Europe where it has established invasive populations. Most of these species were originally introduced for aquaculture, recreational fishing, or ornamental purposes. Two of these fish species (the Eurasian minnow and stone moroko) were accidently introduced when they were unintentionally transported in shipments with desirable fish species stocked for aquaculture or fisheries management.
A species does not have to be currently imported or present in the United States for the Service to list it as injurious. The objective of this listing is to utilize the Lacey Act's major strength by prohibiting importation and interstate transportation and thus preventing the species' likely introduction and establishment in the wild and likely injuriousness to human beings, the interests of agriculture, or to wildlife or wildlife resources. Based on our evaluation of the injurious nature of all 11 species, the Service seeks to prevent these introductions and establishment within the United States, consistent with the Lacey Act.
We evaluated the 10 fish and 1 crayfish species using the Service's Injurious Wildlife Evaluation Criteria. The criteria include the likelihood and magnitude of release or escape, of survival and establishment upon release or escape, and of spread from origin of release or escape. The criteria also examine the effect on wildlife resources and ecosystems (such as through hybridizing, competition for food or habitat, predation on native species, and pathogen transfer), on endangered and threatened species and their respective habitats, and on human beings, forestry, horticulture, and agriculture. Additionally, criteria evaluate the likelihood and magnitude of wildlife or
Each of these 11 species has a well-documented history of invasiveness outside of its native range, but not in the United States. When released into the environment, these species have survived and established, expanded their nonnative range, preyed on native wildlife species, and competed with native species for food and habitat. Since it would be difficult to eradicate, manage, or control the spread of these 11 species; it would be difficult to rehabilitate or recover habitats disturbed by these species; and because introduction of these 11 species would negatively affect agriculture, human beings, and native wildlife or wildlife resources, the Service is proposing to amend its regulations to add these 11 species as injurious under the Lacey Act. This listing would prohibit the importation and interstate transportation of any live animal, gamete, viable egg, or hybrid in the United States, except as specifically authorized.
This proposed rule is not significant under Executive Order (E.O.) 12866. E.O. 12866 Regulatory Planning and Review (Panetta 1993) and the subsequent document, Economic Analysis of Federal Regulations under E.O. 12866 (U.S. Office of Management and Budget 1996) require the Service to ensure that proper consideration is given to the effect of this proposed action on the business community and economy. With respect to the regulations under consideration, analysis that comports with the Circular A–4 would include a full description and estimation of the economic benefits and cost associated with the implementation of the regulations. The economic effects to three groups would be addressed: (1) Producers; (2) consumers; and (3) society. Of the 11 species, only one population of one species (zander) is found in the wild in the United States. Of the 11 species, 1 species (yabby) is in the aquarium trade in the United States; 3 species (crucian carp, Nile perch, and wels catfish) have been imported in small numbers since 2011; and 7 species are not in U.S. trade. Therefore, the economic effect in the United States is negligible or nil. The draft economic analysis that the Service prepared supports this conclusion (USFWS Draft Economic Analysis 2015).
The regulations contained in 50 CFR part 16 implement the Lacey Act (the Act; 18 U.S.C. 42, as amended). Under the terms of the Act, the Secretary of the Interior is authorized to prescribe by regulation those wild mammals, wild birds, fish, mollusks, crustaceans, amphibians, reptiles, and the offspring or eggs of any of the foregoing that are injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States. The lists of injurious wildlife species are found in title 50 of the Code of Federal Regulations (CFR) at §§ 16.11 through 16.15.
The purpose of listing the crucian carp, Eurasian minnow, Prussian carp, roach, stone moroko, Nile perch, Amur sleeper, European perch, zander, and wels catfish and the common yabby (hereafter “11 species”) as injurious wildlife is to prevent the harm that these species could cause to the interests of agriculture, human beings, wildlife, and wildlife resources through their accidental or intentional introduction and establishment into the wild in the United States.
The Service evaluated each of the 11 species individually and determined them to be injurious. Therefore, for these 11 species, their importation into, or transportation between, the States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States of live animals, gametes, viable eggs, or hybrids, except by permit for zoological, educational, medical, or scientific purposes (in accordance with permit regulations 50 CFR 16.22), or by Federal agencies without a permit solely for their own use, upon filing a written declaration with the District Director of Customs and the U.S. Fish and Wildlife Service Inspector at the port of entry. The rule would not prohibit intrastate transport of the listed fish or crayfish species. Any regulations pertaining to the transport or use of these species within a particular State would continue to be the responsibility of that State.
While the Service recognizes that not all nonnative species become invasive, it is important to have some understanding of the risk that nonnative species pose to the United States. Therefore, the Service utilizes a rapid screening process to provide a prediction of the invasive potential of nonnative species. Rapid screens categorize risk as either high, low, or uncertain and have been produced for hundreds of foreign aquatic fish and invertebrates for use by the Service and other entities. Each rapid screen is summarized in an Ecological Risk Screening Summary (ERSS; see “Rapid Screening” for explanation regarding how these summaries were done). The Service selected 11 species with a rapid screen result of “high risk” to consider for listing as injurious. These 11 species have a high climate match (see Rapid Screening) in parts of the United States, a history of invasiveness outside of their native range (see
Except for one species in one lake, these 11 species are not currently present in U.S. ecosystems. All 11 species are documented to be highly invasive internationally (see Species Information for each species). Nine of the freshwater fish species (Amur sleeper, crucian carp, Eurasian minnow, European perch, Prussian carp, roach, stone moroko, wels catfish, and zander) have been introduced and established populations within Europe and Asia. The Prussian carp was recently found to be established in waterways in southern Alberta, Canada (Elgin
The threat posed by these 11 species is evident in their history of invasiveness in other countries and have a high risk of establishment as demonstrated by a high climate match within the United States. Invasive species means “an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health” (Executive Order 13112 on Invasive Species, 1999). A history of invasiveness means that a species has been introduced (either intentionally or unintentionally) to an area or areas where it is not native and has subsequently been scientifically documented to have caused harm to the environment.
Based on the results of rapid screening assessments and our injurious wildlife evaluation, we anticipate that these 11 species would become invasive if they are introduced and become established in waters of the United States. All of these species have wide distribution ranges (where they are native and where they are invasive), suggesting they are highly adaptable and tolerant of new environments and opportunistic when expanding from their native range. Under the Act, the Service has the ability to prevent the introduction of injurious wildlife that poses a threat to the United States. Preventing injurious wildlife from entering the United States is widely considered the most economically effective and efficient management approach for avoiding the adverse ecological effects and economic costs often caused by invasive species..
The Service promulgates regulations under the Act in accordance with the Administrative Procedure Act (APA; 5 U.S.C. 551
This proposed rule is based on an evaluation using the Service's Injurious Wildlife Evaluation Criteria (see Injurious Wildlife Evaluation Criteria, below, for more information). We use these criteria to evaluate whether a species does or does not qualify as injurious under the Act. These criteria include the likelihood and magnitude of release or escape, of survival and establishment upon release or escape, and of spread from origin of release or escape. These criteria also examine the impact on wildlife resources and ecosystems (such as through hybridizing, competition for food or habitat, predation on native species, and pathogen transfer), on endangered and threatened species and their respective habitats, and on human beings, forestry, horticulture, and agriculture. Additionally, criteria evaluate the likelihood and magnitude of wildlife or habitat damages resulting from measures to control the proposed species. The analysis using these criteria serves as a basis for the Service's regulatory decision regarding injurious wildlife species listings. The objective of such a listing would be to prohibit importation and interstate transportation and thus prevent the species' likely introduction and establishment in the wild, thereby preventing injurious effects consistent with 18 U.S.C. 42.
We are evaluating each of the 11 species individually and will list only those species that we determine to be injurious. If a determination is made to not finalize a listing, the Service will publish notice in the
The primary potential pathways for the 11 species into the United States are through commercial trade in the live animal industry, including aquaculture, recreational fishing, bait, and ornamental display. Some could arrive unintentionally in water used to carry other aquatic species. Aquatic species may be imported into many designated ports of entry, including Miami, Los Angeles, Baltimore, Dallas-Fort Worth, Detroit, Chicago, and San Francisco. Once imported, these species may be transported throughout the country for aquaculture, recreational and commercial fishing, aquaculture, bait, display, and other possible uses.
Aquaculture is the farming of aquatic organisms, such as fish, crustaceans, mollusks, and plants for food, pets, stocking for fishing, and other purposes. Aquaculture usually occurs in a controlled setting where the water is contained, as a pond or in a tank, and is separate from lakes, ponds, rivers, and other natural waters. The controlled setting allows the aquaculturist to maintain proper conditions for each species being raised, which promotes optimal feeding and provides protection from predation and disease. However, Bartley (2011) states that aquaculture is the primary reason for the deliberate movement of aquatic species outside of their range, and Casal (2006) states that many countries are turning to aquaculture for human consumption, and that has led to the introduction and establishment of these species in local ecosystems. Although the farmed species are normally safely contained, outdoor aquaculture ponds have often flooded from major rainfall events and merged with neighboring natural waters, allowing the farmed species to escape by swimming or floating to nearby watersheds. Once a species enters a watershed, it has the potential to establish and spread throughout the watershed, which then increases the risk of spread to neighboring watersheds through further flooding. Other pathways for aquaculture species to enter natural waters include intentional stocking programs, and through unintentional stocking when the species is inadvertently included in a shipment with an intended species for stocking (Bartley 2011), release of unwanted ornamental fish, and release of live bait by fishermen.
Stocking for recreational fishing is a common pathway for invasive species when an aquatic species is released into a water body where it is not native. Often it takes repeated releases before the fish (or other animal) becomes established. The type of species that are typically selected and released for recreational fishing are predatory, grow quickly and to large sizes, reproduce abundantly, and are adaptable to many habitat conditions (Fuller
Ornamental aquatic species are species kept in aquaria and aquatic gardens for display for entertainment or public education. The most sought-after species frequently are not native to the display area. Ornamental species may accidentally escape from outdoor ponds into neighboring waterbodies (Andrews 1990; Fuller
The invasive range of many of the species in this proposed rule has expanded through intentional release for commercial and recreational fishing (European perch, Nile perch, Prussian carp, roach, wels catfish, zander, and common yabby), as bait (Eurasian minnow, roach, common yabby), and as ornamental fish (Amur sleeper, stone moroko), and unintentionally (Amur sleeper, crucian carp, Eurasian minnow, and stone moroko) with shipments of other aquatic species. All 11 species have proven that they are capable of naturally dispersing through waterways.
More importantly, the main factors influencing the chances of these 11 species establishing in the wild would be the propagule pressure, defined as the frequency of release events (propagule number) and numbers of individuals released (propagule size) (Williamson 1996; Colautti and MacIsaac 2004; Duncan 2011). This increases the odds of both genders being released and finding mates and of those individuals being healthy and vigorous. After a sufficient number of unintentional or intentional releases, a species may establish in those regions suitable for its survival and reproduction. Thus, allowing the importation and unregulated interstate transport of these 11 species subsequently increases the risk of any of these species becoming established within the United States.
An additional factor contributing to an invasive species' successful establishment is a documented history of these same species successfully establishing elsewhere outside of their native ranges. All 11 species have been introduced, become established, and been documented as causing harm in countries outside of their native ranges. For example, the stone moroko's native range includes southern and central Japan, Taiwan, Korea, China, and the Amur River basin (Copp
As mentioned above, a species does not have to be currently imported or present in the United States for the Service to list it as injurious. The objective of this listing is to utilize the Act's major strength to prohibit importation and interstate transportation and thus prevent the species' likely introduction and establishment in the wild and likely harm to human beings, the interests of agriculture, or wildlife or wildlife resources, thereby preventing injurious effects consistent with the Lacey Act.
The Service is soliciting substantive public comments and supporting data on the draft environmental assessment, the draft economic analysis, and this proposed rule to add the 11 species to the list of injurious wildlife under the Act. This proposed rule and supporting materials will be available on
Comments and materials concerning this rule may be submitted by one of the methods listed in
We will post your entire comment—including your personal identifying information—on
Those comments and materials that we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public review at
We are soliciting public comments and supporting data to gain additional information, and we specifically seek comment regarding the crucian carp, Eurasian minnow, Prussian carp, roach, stone moroko, Nile perch, Amur sleeper, European perch, zander, and wels catfish and the common yabby on the following questions:
(1) What regulations does your State or Territory have pertaining to the use, possession, sale, transport, or production of any of the 11 species in this proposed rule? What are relevant Federal, State, or local rules that may duplicate, overlap, or conflict with the proposed Federal regulation?
(2) Are any of the 11 species currently found in the wild in any of the States or Territories? If so, which species and where?
(3) Are any of the 11 species currently in production for wholesale or retail sale, and in which States?
(4) What would it cost to eradicate individuals or populations of any of the 11 species, or similar species, if found in the United States? What methods are effective?
(5) What State-protected species would be adversely affected by the introduction of any of the 11 species?
(6) What provisions in the proposed rule should the Service consider with
(7) How could the proposed rule be modified to reduce any costs or burdens for small entities consistent with the Service's requirements?
(8) Should we include or not include hybrids of the species analyzed in this proposed rule, and would the hybrids be likely to possess the same biological characteristics as the parent species?
We obtained our information on a species' biology, history of invasiveness, and climate matching from a variety of sources, including the U.S. Geological Survey Nonindigenous Aquatic Species (NAS) database, Centre for Agricultural Bioscience International's Invasive Species Compendium (CABI ISC), ERSS reports, and primary literature. We queried the NAS database (
The crucian carp was first described and cataloged by Linnaeus in 1758, and is part of the order Cypriniformes and family Cyprinidae. The family Cyprinidae, or the carp and minnow family, is a large and diverse group that includes 2,963 freshwater species (Froese and Pauly 2014).
The crucian carp inhabits a temperate climate (Riehl and Baensch 1991). The native range includes much of north and central Europe, extending from the North Sea and Baltic Sea basins across northern France and Germany to the Alps and through the Danube River basin and eastward to Siberia (Godard and Copp 2012). The species inhabits freshwater lakes, ponds, rivers, and ditches (Godard and Copp 2012). This species can survive in water with low dissolved oxygen levels, including aquatic environments with greatly reduced oxygen (hypoxic) or largely devoid of dissolved oxygen (anoxic) (Godard and Copp 2012).
Crucian carp have been widely introduced to and established in Croatia, Greece, southern France (Holčík 1991; Godard and Copp 2012), Italy, and England (Kottelat and Freyhof 2007), Spain, Belgium, Israel, Switzerland, Chile, India, Sri Lanka, Philippines (Holčík 1991; Froese and Pauly 2014), and Turkey (Innal and Erk'akan 2006). In the United States, crucian carp may have been established within Chicago (Illinois) lakes and lagoons in the early 1900s (Meek and Hildebrand 1910; Schofield
Several other fish species, including the Prussian carp, a brown variety of goldfish (
Crucian carp generally range from 20 to 45 centimeters (cm) (8 to 18 inches (in)) long with a maximum of 50 cm (19.5 in) (Godard and Copp 2012). Specimens have been reported to weigh up to 3 kilograms (kg) (6.6 pounds (lb)) (Froese and Pauly 2014). These fish have an olive-gray back that transitions into brassy green along the sides and brown on the body (Godard and Copp 2012).
Crucian carp can live up to 10 years (Kottelat and Freyhof 2007) and reach sexual maturity at one and a half years but may not begin spawning until their third year (Godard and Copp 2012). Crucian carp are batch spawners (release multiple batches of eggs per season) and may spawn one to three times per year (Aho and Holopainen 2000, Godard and Copp 2012).
Crucian carp feed during the day and night on plankton, benthic (bottom-dwelling) invertebrates, plant materials, and detritus (organic material) (Kottelat and Freyhof 2007).
Crucian carp can harbor the fish disease spring viraemia of carp (SVC) (Ahne
OIE-notifiable diseases meet certain criteria for consequences, spread, and diagnosis. For the consequences criteria, the disease must have either been documented as causing significant production losses on a national or multinational (zonal or regional) level, or have scientific evidence that indicates that the diseases will cause significant morbidity or mortality in wild aquatic animal populations, or be an agent of public health concern. For the spread criteria, the disease's infectious etiology (cause) must be known or an infectious agent is strongly associated with the disease (with etiology unknown). In addition for the spread criteria, there must be a likelihood of international spread (via live animals and animal products) and the disease must not be widespread (several countries or regions of countries without specific disease). For the diagnosis criteria, there must be a standardized, proven diagnostic test for disease detection (OIE 2012). These internationally-accepted standards, including those that document the consequences (harm) of certain diseases, offer supporting evidence of injuriousness.
This species demonstrates many of the strongest traits for invasiveness. The crucian carp is capable of securing and ingesting a wide range of food, has a broad native range, and is highly adaptable to different environments (Godard and Copp 2012). Crucian carp can increase turbidity (cloudiness of water) in lakes, rivers, and streams with soft bottom sediments while scavenging along the substrate. Increased turbidity
The Eurasian minnow was first described and cataloged by Linnaeus in 1758, and belongs to the order Cypriniformes and family Cyprinidae (ITIS 2014). Although Eurasian minnow is the preferred common name, this fish species is also referred to as the European minnow.
The Eurasian minnow inhabits a temperate climate, and the native range includes much of Eurasia within the basins of the Atlantic, North and Baltic Seas, and the Arctic and the northern Pacific Oceans (Froese and Pauly 2014).
Eurasian minnows can be found in a variety of habitats ranging from brackish (estuarine; slightly salty) to freshwater streams, rivers, ponds, and lakes located within the coastal zone to the mountains (Sandlund 2008). In Norway, they are found at elevations up to 2,000 m (6,562 ft). These minnows prefer shallow lakes or slow-flowing streams and rivers with stony substrate (Sandlund 2008).
The Eurasian minnow's nonnative range includes parts of Sweden and Norway, United Kingdom, and Egypt (Sandlund 2008), as well as other drainages juxtaposed to native waterways. The Eurasian minnow was initially introduced as live bait, which was the main pathway of introduction throughout the 1900s (Sandlund 2008). The inadvertent inclusion of this minnow species in the transport water of brown trout (
The Eurasian minnow is expanding its nonnative range by establishing populations in additional waterways bordering the native range. Waterways near where the minnow is already established are most at risk (Sandlund 2008).
The Eurasian minnow has a torpedo-shaped body measuring 6 to 10 cm (2.3 to 4 in) with a maximum of 15 cm (6 in). Size and growth rate are both highly dependent on population density and environmental factors (Lien 1981; Mills 1987, 1988; Sandlund 2008). These minnows have variable coloration but are often brownish-green on the back with a whitish stomach and brown and black blotches along the side (Sandlund 2008).
The Eurasian minnow's life-history traits (age, size at sexual maturity, growth rate, and life span) may be highly variable (Mills 1988). Populations residing in lower latitudes often have smaller body size and younger age of maturity than those populations in higher altitudes and latitudes (Mills 1988). Maturity ranges from less than 1 year to 6 years of age, with a lifespan as long as 13 to 15 years (Sandlund 2008). The Eurasian minnow spawns annually with an average fecundity between 200 to 1,000 eggs (Sandlund 2008).
This minnow usually cohabitates with salmonid fishes (Kottelat and Freyhof 2007). The Eurasian minnow feeds mostly on invertebrates (crustaceans and insect larvae) as well as some algal and plant material (Lien 1981).
The Eurasian minnow demonstrates many of the strongest traits for invasiveness. The species is highly adaptable to new environments and is difficult to control (Sandlund 2008). The species can become established within varying freshwater systems, including lowland and high alpine areas, as well as in brackish water (Sandlund 2008). Introductions of the Eurasian minnow can cause major changes to nonnative ecosystems by affecting the benthic community (decreased invertebrate diversity) and disrupting trophic level structure (Sandlund 2008). This affects the ability of native fish to find food as well as disrupts native spawning. The Eurasian minnow has been shown to reduce recruitment of brown trout by predation (Sandlund 2008). Although brown trout are not native to the United States, they are closely related to our native trout and salmon, and thus Eurasian minnows could be expected to reduce the recruitment of native trout.
In addition, Eurasian minnows are carriers of parasites and have increased the introduction of parasites to new areas. Such parasites affected native snails, mussels, and different insects within subalpine lakes in southern Norway following introduction of the Eurasian minnows (Sandlund 2008). Additionally, Zietara
The Prussian carp was first described and catalogued by Bloch in 1782, and belongs to the order Cypriniformes and family Cyprinidae (ITIS 2014).
The Prussian carp inhabits a temperate climate (Baensch and Riehl 2004). The species is native to regions of central Europe and eastward to Siberia. It is also native to several Asian countries, including China, Georgia, Kyrgyzstan, Mongolia, Turkey, and Turkmenistan (Britton 2011). The Prussian carp resides in a variety of fresh stillwater bodies and rivers. This species also inhabits warm, shallow, eutrophic (high in nutrients) waters with submerged vegetation or regular flooding events (Kottelat and Freyhof 2007). This species can live in polluted waters with pollution and low oxygen concentrations (Britton 2011).
The Prussian carp has been introduced to many countries within central and Western Europe. This species was first introduced to Belgium during the 1600s and is now prevalent in Belgian freshwater systems. The Prussian carp was also introduced to Belarus and Poland during 1940s for recreational fishing and aquaculture. This carp species has dispersed and expanded its range using the Vistula and Bug River basins (Britton 2011). During the mid to late 1970s, this carp species invaded the Czech Republic river system from the Danube River via the Morava River. Once in the river system, the fish expanded into tributary streams and connected watersheds. Throughout its nonnative range, this species has been stocked with common carp and misidentified as crucian carp (Britton 2011). From the original stocked site, the Prussian carp has dispersed both naturally (swimming) and with human involvement.
The Prussian carp's current nonnative range includes the Asian countries of
The Prussian carp has a silvery-brown body with an average length of 20 cm (7.9 in) and reported maximum length of 35 cm (13.8 in) (Kottelat and Freyhof 2007, Froese and Pauly 2014). This species has a reported maximum weight of 3 kilograms (kg; 6.6 pounds (lb) (Froese and Pauly 201b).
The Prussian carp lives up to 10 years (Kottelat and Freyhof 2007). This species can reproduce in a way very rare among fish. Introduced populations often include, or are solely composed of, triploid females that can undergo natural gynogenesis, allowing them to reproduce from unfertilized eggs (Britton 2011). Thus, the eggs are viable without being fertilized by males.
The Prussian carp is a generalist omnivore and consumes a varied diet that includes plankton, benthic invertebrates, plant material, and detritus (Britton 2011).
The parasite
The Prussian carp is a highly invasive species in freshwater ecosystems throughout Europe and Asia. This fish species grows rapidly and can reproduce from unfertilized eggs (Vetemaa
The roach was first described and cataloged by Linnaeus in 1758, and belongs to the order Cypriniformes and family Cyprinidae (ITIS 2014).
The roach inhabits temperate climates (Riehl and Baensch 1991). The species' native range includes regions of Europe and Asia. Within Europe, it is found north of the Pyrenees and Alps and eastward to the Ural River and Eya drainages (Caspian Sea basin) and within the Aegean Sea basin and watershed (Kottelat and Freyhof 2007). In Asia, the roach's native range extends from the Sea of Marmara basin and lower Sakarya Province (Turkey) to the Aral Sea basin and Siberia (Kottelat and Freyhof 2007).
This species often resides in nutrient-rich lakes, medium to large rivers, and backwaters. Within rivers, the roach is limited to areas with slow currents.
This species has been introduced to several countries for recreational fishing. Once introduced, the roach has moved into new water bodies within the same country (Rocabayera and Veiga 2012). In 1889, the roach was brought from England to Ireland for use as bait fish. Some of these fish accidently escaped into Cork Blackwater system. After this initial introduction, this fish species was deliberately stocked in nearby lakes. The roach has continued its expansion throughout Ireland watersheds, and by 2000, had invaded every major river system within Ireland (Rocabayera and Veiga 2012).
This species has been reported as invasive in north and central Italy, where it was introduced for recreational fishing (Rocabayera and Veiga 2012). The roach was also introduced to Madagascar, Morocco, Cyprus, Portugal, the Azores, Spain, and Australia (Rocabayera and Veiga 2012).
The roach has an average body length of 25 cm (9.8 in) and reported maximum length of 50 cm (19.7 in) (Rocabayera and Veiga 2012). The maximum published weight is 1.84 kg (4 lb) (Froese and Pauly 2014).
The roach can live up to 14 years (Froese and Pauly 2013). Male fish are sexually mature at 2 to 3 years and female fish at 3 to 4 years. A whole roach population typically spawns within 5 to 10 days, with each female producing 700 to 77,000 eggs (Rocabayera and Veiga 2012). Eggs hatch approximately 12 days later (Kottelat and Freyhoff 2007).
The roach has a general, omnivorous diet, including benthic invertebrates, zooplankton, plants, and detritus (Rocabayera and Veiga 2012). Of the European cyprinids (carps, minnows, and their relatives), the roach is one of the most efficient molluscivores (Winfield and Winfield 1994).
Parasitic infections, including worm cataracts (
The main issues associated with invasive roach populations include competition with native fish species, hybridization with native fish species, and altered ecosystem nutrient cycling (Rocabayera and Veiga 2012). The roach is a highly adaptive species and adapts to a different habitat or diet to avoid predation or competition (Winfield and Winfield 1994).
The roach also has a high reproductive rate and spawns earlier than some other native fish (Volta and Jepsen 2008, Rocabayera and Veiga 2012). This allows larvae to have a competitive edge over native fish larvae (Volta and Jepsen 2008).
The roach can hybridize with other cyprinids, including rudd (
Within nutrient-rich lakes or ponds, large populations of roach create adverse nutrient cycling. High numbers of roach consume large amounts of zooplankton, which results in algal blooms, increased turbidity, and changes in nutrient availability and cycling (Rocabayera and Veiga 2012).
The stone moroko was first described and cataloged by Temminick and Schlegel in 1846 and belongs to the order Cypriniformes and family Cyprinidae (ITIS 2014). Although the preferred common name is the stone moroko, this fish species is also called the topmouth gudgeon (Froese and Pauly 2014).
The stone moroko inhabits a temperate climate (Baensch and Riehl 1993). Its native range is Asia, including southern and central Japan, Taiwan, Korea, China, and the Amur River basin. The stone moroko resides in freshwater lakes, ponds, rivers, streams, and irrigation canals (Copp 2007).
The stone moroko was introduced to Romania in the early 1960s with a
Within Asia, the stone moroko has been introduced to Afghanistan, Armenia, Iran, Kazakhstan, Laos, Taiwan, Turkey, and Uzbekistan (Copp 2007). In Europe, this fish species' nonnative range includes Albania, Austria, Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Greece, Hungary, Italy, Lithuania, Moldova, Montenegro, Netherlands, Poland, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine, and the United Kingdom (Copp 2007). The stone moroko has also been introduced to Algeria and Fiji (Copp 2007).
The stone moroko is a small fish with an average body length of 8 cm (3.1 in), maximum reported length of 11 cm (4.3 in) (Froese and Pauly 2014g), and average body mass of 17 to 19 grams (g; 0.04 lb) (Witkowski 2011). This fish species is grayish black with a lighter belly and sides. Juveniles have a dark stripe along the side that disappears with maturity (Witkowski 2011).
This fish species can live up to 5 years (Froese and Pauly 2014). The stone moroko becomes sexually mature and begins spawning at 1 year (Witkowski 2011). Females release several dozen eggs per spawning event and spawn several times per year. The total number of eggs spawned per female ranges from a few hundred to a few thousand eggs (Witkowski 2011). Male fish aggressively guard eggs until hatching (Witkowski 2011).
The stone moroko maintains an omnivorous diet of small insects, fish, mollusks, planktonic crustaceans, fish eggs, algae (Froese and Pauly 2014g), and plants (Kottelat and Freyhof 2007).
The stone moroko is an unaffected carrier of the pathogenic parasite
The stone moroko has proven to be a highly invasive fish, establishing invasive populations in nearly every European country over a 40-year span (Copp 2007, Copp
In many areas of introduction and establishment (for example, United Kingdom, Italy, China, and Russia), the stone moroko has been linked to the decline of native freshwater fish populations (Copp 2007). The stone moroko has been found to dominate the fish community when it becomes established. Native fishes have exhibited decreased growth rate and reproduction, and they shifted their diet as a result of food competition (Britton
Additionally, this species is a vector of
The Nile perch was first described and cataloged by Linnaeus in 1758 and is in the order Perciformes and family Centropomidae (ITIS 2014). Although its preferred common name is the Nile perch, it is also referred to as the African snook and Victoria perch (Witte 2013).
The Nile perch inhabits a tropical climate with an optimal water temperature of 28 °C (82 °F) and an upper lethal temperature of 38 °C (100 °F) (Kitchell
The Nile perch, which is not native to Lake Victoria in Africa, was first introduced to the lake in 1954 from nearby Lake Albert. This species was introduced on the Ugandan side and spread to the Kenyan side. A breeding population existed in the lake by 1962 (Witte 2013). Additional introductions of Nile perch occurred in 1962 and 1963, in Kenyan and Ugandan waters to promote a commercial fishery. The increase in Nile perch population was first noted in Kenyan waters in 1979, in Ugandan waters 2 to 3 years later, and in Tanzanian waters 4 to 5 years later (Witte 2013).
The Nile perch was also introduced to Lake Kyoga (1954 and 1955) to gauge the effects of Nile perch on fish populations similar to that of Lake Victoria. At the time of introduction, people were unaware that this species had already been introduced to Lake Victoria (Witte 2013). Since its initial introduction to Lakes Victoria and Kyoga, this fish species has been accidently and deliberately introduced to many of the neighboring lakes and waterways (Witte 2013). There are currently only a few lakes in the area without a Nile perch population (Witte 2013).
The Nile perch was also introduced into Cuba for aquaculture and sport in 1982 and 1983 (Welcomme 1988), but we have no information on the subsequent status.
Nile perch were stocked in Texas waters in 1978, 1979, and 1984 (88, 14, and 26 fish respectively in Victor Braunig Lake); in 1981 (68,119 in Coleto Creek Reservoir); and in 1983 (1,310 in Fairfield Lake) (Fuller
The Nile perch has a perch-like body with average body length of 100 cm (3.3 ft), maximum length of 200 cm (6.6 ft) (Ribbink 1987, Froese and Pauly 2013), and maximum weight of 200 kg (441 lb) (Ribbink 1987). The Nile perch is gray-blue on the dorsal side with gray-silver along the flank and ventral side (Witte 2013).
The age of sexual maturity varies with habitat location. Most male fish become sexually mature before females (1 to 2 years versus 1 to 4 years of age) (Witte 2013). This species spawns throughout the year with increased spawning during the rainy season (Witte 2013). The Nile perch produce 3 million to 15 million eggs per breeding cycle (Asila and Ogari 1988). This high fecundity
Nile perch less than 5 cm eat zooplankton (cladocerans and copepods) (Witte 2013). Juvenile Nile perch (35 to 75 cm long) feed on invertebrates, primarily aquatic insects, crustaceans, and mollusks (Ribbink 1987). Adult Nile perch are piscivorous (fish eaters), they also consume large crustaceans (
The Nile perch is host to a number of parasites capable of causing infections and diseases in other species, including sporozoa infections (
The Nile perch has been listed as one of the 100 “World's Worst” Invaders by the Global Invasive Species Database (
The Amur sleeper was first described and cataloged by B.I. Dybowski in 1877, as part of the order Perciformes and family Odontobutidae (Bogutskaya and Naseka 2002, ITIS 2014). The Amur sleeper is the preferred common name of this freshwater fish, but this fish is also called the Chinese sleeper or rotan (Bogutskaya and Naseka 2002, Froese and Pauly 2014). In this proposed rule, we will refer to the species as the Amur sleeper.
The Amur sleeper inhabits a temperate climate (Baensch and Riehl 2004). The species' native distribution includes much of the freshwater regions of northeastern China and northern North Korea, the Far East of Russia (Reshetnikov 2004), and South Korea (Grabowska 2011). Within China, this species is predominately native to the lower to middle region of the Amur River watershed, including the Zeya, Sunguri, and Ussuri tributaries (Bogutskaya and Naseka 2002, Grabowska 2011) and Lake Khanka (Courtenay 2006). The Amur sleeper's range extends northward to the Tugur River (Siberia) (Grabowska 2011) and southward to the Sea of Japan (Bogutskaya and Naseka 2002, Grabowska 2011). To the west, the species does not occur in the Amur River upstream of Dzhalinda (Bogutskaya and Nasaka 2002).
The Amur sleeper inhabits freshwater lakes, ponds, canals, backwaters, flood plains, oxbow lakes, and marshes (Grabowska 2011). This fish is a poor swimmer, thriving in slow-moving waters with dense vegetation and muddy substrate and avoiding main river currents (Grabowska 2011). The Amur sleeper can live in poorly oxygenated water and can also survive in dried out or frozen water bodies by burrowing into and hibernating in the mud (Bogutskaya and Nasaka 2002, Grabowska 2011).
Although the Amur sleeper is a freshwater fish, there are limited reports of it appearing in saltwater environments (Bogutskaya and Naseka 2002). These reports seem to occur with flood events and are likely a consequence of these fish being carried downstream into these saltwater environments (Bogutskaya and Naseka 2002).
This species' first known introduction was in western Russia. In 1912, Russian naturalist I.L. Zalivskii brought four Amur sleepers to the Lisiy Nos settlement (St. Petersburg, Russia) (Reshetnikov 2004, Grabowska 2011). These four fish were held in aquaria until 1916, when they were released into a pond, where they subsequently established a population before naturally dispersing into nearby water bodies (Reshetnikov 2004, Grabowska 2011). In 1948, additional Amur sleepers were introduced to Moscow for use in ornamental ponds by members of an expedition (Bogutskaya and Naseka 2002, Reshetnikov 2004). These fish escaped the ponds they were stocked into and spread to nearby waters in the city of Moscow and Moscow Province (Reshetnikov 2004).
Additionally, Amur sleepers were introduced to new areas when they were unintentionally shipped to fish farms in fish stocks such as silver carp (
The Amur sleeper is an invasive species in western Russia and 14 additional countries: Mongolia, Belarus, Ukraine, Lithuania, Latvia, Estonia, Poland, Hungary, Romania, Slovakia, Serbia, Bulgaria, Moldova, and Croatia (Froese and Pauly 2014, Grabowska 2011). The Amur sleeper is established within the Baikal, Baltic, and Volga water basins of Europe and Asia (Bogutskaya and Naseka 2002). The species' nonnative range extends northward to Lake Plestsy in Arkhangelsk province (Russia), southward to Bulgaria, and westward to the Kis-Balaton watershed in Hungary (Grabowska 2011).
The Amur sleeper is a small- to medium-sized fish with a maximum body length of 25 cm (9.8 in) (Grabowska 2011) and weight of 250 g (0.6 lb) (Reshetnikov 2003). As with other fish species, both body length and weight vary with food supply, and larger Amur sleeper specimens have been reported from the nonnative range (Bogutskaya and Naseka 2002).
Body shape is fusiform with two dorsal fins, short pelvic fins, and rounded caudal fin (Grabowska 2011). The Amur sleeper has dark coloration of greenish olive, brownish gray, or dark green with dark spots and pale yellow to blue-green flecks (Grabowska 2011). Males are not easily discerned from females except during breeding season. Breeding males are darker (almost black) with bright blue-green spots and also have inflated areas on the head (Grabowska 2011).
The Amur sleeper lifespan is from 7 to 10 years. Within native ranges, the fish rarely lives more than 4 years, whereas in nonnative ranges, the fish generally lives longer (Bogutskaya and Naseka 2002, Grabowska 2011). The fish reaches maturity between 2 and 3 years of age (Grabowska 2011) and has at least two spawning events per year.
The number of eggs per spawning event varies with female size. In the Wloclawski Reservoir, which is outside of the Amur sleeper's native range, the females produced an average of 7,766 eggs per female (range 1,963 to 23,479 eggs) (Grabowska
The Amur sleeper is a voracious, generalist predator that eats invertebrates (such as freshwater crayfish, shrimp, mollusks, and insects), amphibian tadpoles, and small fish (Bogutskaya and Naseka 2002). Reshetnikov (2003) found that the Amur sleeper significantly reduced species diversity of fishes and amphibians where it was introduced. In some small water bodies, Amur sleepers considerably decrease the number of species of aquatic macroinvertebrates, amphibian larvae, and fish species (Reshetnikov 2003, Pauly 2014, Kottelat and Freyhof 2007).
The predators of Amur sleepers include pike, perch, snakeheads (
The Amur sleeper reportedly has high parasitic burdens of more than 40 parasite species (Grabowska 2011). The host-specific parasites, including
The Amur sleeper is considered one of the most widespread, invasive fish in European freshwater ecosystems within the last several decades (Copp
The Amur sleeper demonstrates many of the strongest traits for invasiveness: It consumes a highly varied diet, is fast growing with a high reproductive potential, easily adapts to different environments, and has an expansive native range and proven history of increasing its nonnative range by itself and through human-mediated activities (Grabowska 2011). Where it is invasive, the Amur sleeper competes with native species for similar habitat and diet resources (Reshetnikov 2003, Kottelat and Freyhof 2007). This fish has also been associated with the decline in populations of the European mudminnow (
The European perch was first described and cataloged by Linnaeus in 1758, and is part of the order Perciformes and family Percidae (ITIS 2014). European perch is the preferred common name, but this species may also be referred to as the Eurasian perch or redfin perch (Allen 2004, Froese and Pauly 2014).
The European perch inhabits a temperate climate (Riehl and Baensch 1991, Froese and Pauly 2014). This species' native range extends throughout Europe and regions of Asia, including Afghanistan, Armenia, Azerbaijan, Georgia, Iran, Kazakhstan, Mongolia, Turkey, and Uzbekistan (Froese and Pauly 2014). The fish resides in a range of habitats that includes estuaries and freshwater lakes, ponds, rivers, and streams (Froese and Pauly 2014).
The European perch has been intentionally introduced to several countries for recreational fishing, including Ireland (in the 1700s), Australia (in 1862), South Africa (in 1915), Morocco (in 1939), and Cyprus (in 1971) (FAO 2014, Froese and Pauly 2014). This species was introduced intentionally to Turkey for aquaculture (FAO 2004) and unintentionally to Algeria when it was included in the transport water with carp intentionally brought into the country (Kara 2012, Froese and Pauly 2014). European perch have also been introduced to China (in the 1970s), Italy (in 1860), New Zealand (in 1867), and Spain (no date) for unknown reasons (FAO 2014). In Australia, this species was first introduced as an effort to introduce wildlife familiar to European colonizers (Arthington and McKenzie 1997). The European perch was first introduced to Tasmania in 1862, Victoria in 1868, and to southwest Western Australia in 1892 and the early 1900s (Arthington and McKenzie 1997). This species has now invaded western Victoria, New South Wales, Tasmania, Western Australia, and South Australian Gulf Coast (NSW DPI 2013). In the 1980s, the European perch invaded the Murray River in southwestern Australia (Hutchison and Armstrong 1993).
The European perch has an average body length of 25 cm (10 in) with a maximum length of 60 cm (24 in) (Kottelat and Freyhof 2007, Froese and Pauly 2014j) and an average body weight of 1.2 kg (2.6 lb) with a maximum weight of 4.75 kg (10.5 lb) (Froese and Pauly 2014). European perch color varies with habitat. Fish in well-lit shallow habitats tend to be darker, whereas fish residing in poorly lit areas tend to be lighter. These fish may also absorb carotenoids (nutrients that cause color) from their diet (crustaceans), resulting in reddish-yellow color (Allen 2004). Male fish are not easily externally differentiated from female fish (Allen 2004).
The European perch lives up to 22 years (Froese and Pauly 2014), although the average is 6 years (Kottelat and Freyhof 2007). This fish may participate in short migrations prior to spawning in February through July, depending on latitude and altitude (Kottelat and Freyhof 2007). Female fish are sexually mature at 2 to 4 years and males at 1 to 2 years (Kottelat and Freyhof 2007).
The European perch is a generalist predator with a diet of zooplankton, macroinvertebrates (such as copepods and crustaceans), and small fish (Kottelat and Freyhof 2007, Froese and Pauly 2014).
The European perch can also carry the OIE-notifiable disease epizootic haematopoietic necrosis (EHN) virus
The European perch has been introduced to many new regions through fish stocking for recreational use. The nonnative range has also expanded as the fish has swum to new areas through connecting waterbodies (lakes, river, and streams within the same watershed). In New South Wales, Australia, these fish are a serious pest and are listed as Class 1 noxious species (NSW DPI 2013). These predatory fish have been blamed for the local extirpation of the mudminnow (
The zander was first described and catalogued by Linnaeus in 1758, and belongs to the order Perciformes and family Percidae (ITIS 2014). Although its preferred common name in the United States is the zander, this fish species is also called the pike-perch and European walleye (Godard and Copp 2011, Froese and Pauly 2014).
The zander's native range includes the Caspian Sea, Baltic Sea, Black Sea, Aral Sea, North Sea, and Aegean Sea basins. In Asia, this fish is native to Afghanistan, Armenia, Azerbaijan, Georgia, Iran, Kazakhstan, and Uzbekistan. In Europe, the zander is native to much of eastern Europe (Albania, Austria, Czech Republic, Estonia, Germany, Greece, Hungary, Latvia, Lithuania, Moldova, Poland, Romania, Russia, Serbia, Slovakia, Ukraine, and Serbia and Montenegro) and the Scandinavian Peninsula (Finland, Norway, and Sweden) (Godard and Copp 2011, Froese and Pauly 2014). The northernmost records of native populations are in Finland up to 64 °N (Larsen and Berg 2014).
The zander resides in brackish coastal estuaries and freshwater rivers, lakes, and reservoirs. The species prefers turbid, slightly eutrophic waters with high dissolved oxygen concentrations (Godard and Copp 2011). The zander can survive in salinities up to 20 parts per thousand (ppt), but prefers environments with salinities less than 12 ppt and requires less than 3 ppt for reproduction (Larsen and Berg 2014).
The zander has been repeatedly introduced outside of its native range for recreational fishing and aquaculture and also to control cyprinids (Godard and Copp 2011, Larsen and Berg 2014). This species has been introduced to much of Europe, parts of Asia (China, Kyrgyzstan, and Turkey), and northern Africa (Algeria, Morocco, and Tunisia). Within Europe, the zander has been introduced to Belgium, Bulgaria, Croatia, Cyprus, Denmark, France, Italy, the Netherlands, Portugal, the Azores, Slovenia, Spain, Switzerland, and the United Kingdom (Godard and Copp 2011, Froese and Pauly 2014). In Denmark, although the zander is native, stocking is not permitted to prevent the species from being introduced into lakes and rivers where it is not presently found and where introduction is not desirable (Larsen and Berg 2014).
The zander has been previously introduced to the United States. Juvenile zanders were stocked into Spiritwood Lake (North Dakota) in 1989 for recreational fishing (Fuller
The zander has an average body length of 50 cm (1.6 ft) and maximum body length of 100 cm (3.3 ft). The maximum published weight is 20 kg (44 lb) (Froese and Pauly 2013). The zander has a long slender body with yellow-gray fins and dark bands running from the back down each side (Godard and Copp 2011).
The zander's age expectancy is inversely correlated to its body growth rate. Slower-growing zanders may live up to 20 to 24 years, whereas faster-growing fish may live only 8 to 9 years (Godard and Copp 2011). Female zanders typically spawn in April and May and produce approximately 150 to 400 eggs per gram of body mass. After spawning, male zanders protect the nest and fan the eggs with the pectoral fins (Godard and Copp 2011).
The zander is piscivorous, and its diet includes smelt (
Several studies have found that zanders can be hosts for multiple parasites (Godard and Copp 2011). The nematode
The zander has been intentionally introduced numerous times for aquaculture, recreational fishing, and occasionally for biomanipulation to remove unwanted cyprinids (Godard and Copp 2011). Biomanipulation is the management of an ecosystem by adding or removing species. The zander also migrates for spawning, further expanding its invasive range. It is a predatory fish that is well-adapted to turbid water and low-light habitats (Sandström and Karås 2002). The zander competes with and preys on native fish populations. The zander is also a vector for the trematode
The wels catfish was first described and cataloged by Linnaeus in 1758, and belongs to the order Siluriformes and family Siluridae (ITIS 2014). The preferred common name is the wels catfish, but this fish is also called the Danube catfish, European catfish, and sheatfish (Rees 2012, Froese and Pauly 2014).
The wels catfish inhabits a temperate climate (Baensch and Riehl 2004). The species is native to eastern Europe and
The wels catfish was introduced to the United Kingdom and western Europe during the 19th century. The species was first introduced to England in 1880 for recreational fishing at the private Bedford manor estate of Woburn Abbey. Since then, wels catfish have been stocked both legally and illegally into many lakes and are now widely distributed throughout the United Kingdom (Rees 2012). This species was introduced to Spain, Italy, and France for recreational fishing and aquaculture (Rees 2012). Wels catfish were introduced to the Netherlands as a substitute predator to control cyprinid fish populations (De Groot 1985) after the native pike were overfished. The wels catfish has also been introduced to Algeria, Belgium, Bosnia-Hercegovina, China, Croatia, Cyprus, Denmark, Finland, Portugal, Syria, and Tunisia, although they are not known to be established in Algeria or Cyprus (Rees 2012).
The wels catfish commonly grows to 3 m (9.8 ft) in body length with a maximum length of 5 m (16.4 ft) and is Europe's largest freshwater fish (Rees 2012). The maximum published weight is 306 kg (675 lb) (Rees 2012).
This species has a strong, elongated, scaleless, mucus-covered body with a flattened tail. The body color is variable but is generally mottled with dark greenish-black and creamy-yellow sides. Wels catfishes possess six barbels; two long ones on each side of the mouth, and four shorter ones under the jaw (Rees 2012).
Although the maximum reported age is 80 years (Kottelat and Freyhof 2007), the average lifespan of a wels catfish is 15 to 30 years. This species becomes sexually mature at 3 to 4 years of age. Nocturnal spawning occurs annually and aligns with optimal temperature and day length between April and August (Kottelat and Freyhof 2007, Rees 2012). The number of eggs produced per female, per year is highly variable, and depends on age, size, geographic location, and other factors. Studies in Asia have documented egg production of a range of approximately 8,000 to 467,000 eggs with the maximum reported being 700,000 eggs (Copp
This species is primarily nocturnal and will exhibit territorial behavior (Copp
Juvenile wels catfish can carry the highly infectious SVC (Hickley and Chare 2004). This disease is recognized worldwide and is classified as a notifiable animal disease by the World Organisation for Animal Health (OIE 2014). The wels catfish is also a host to at least 52 parasites, including:
The wels catfish is a habitat-generalist that tolerates poorly oxygenated waters and has been repeatedly introduced to the United Kingdom and western Europe for aquaculture, research, pest control, and recreational fishing (Rees 2012). Although this species has been intentionally introduced for aquaculture and fishing, it has also expanded its nonnative range by escaping from breeding and stocking facilities (Rees 2012). This species is tolerant of a variety of warm-water habitats, including those with low dissolved oxygen levels. The invasive success of the wels catfish will likely be further enhanced with the predicted increase in water temperature with climate change (2 to 3 °C by 2050) (Rahel and Olden 2008, Britton
The major risks associated with invasive wels catfish to the native fish population include disease transmission (SVC) and competition for habitat and prey species (Rees 2012). This fish species also excretes large amounts of phosphorus and nitrogen (estimated 83- to 286-fold and 17- to 56-fold, respectively) (Boulêtreau
Unlike the 10 fish in this rule, the yabby is a crayfish. Crayfish are invertebrates with hard shells. They can live and breathe underwater, and they crawl along the substrate on four pairs of walking legs (Holdich and Reeve 1988); the pincers are considered another pair of walking legs. The common yabby was first described and cataloged by Clark in 1936 and belongs to the phylum Arthropoda, order Decapoda, and family Parastacidae (ITIS 2014). This freshwater crustacean may also be called the yabby or the common crayfish. The term “yabby” is also commonly used for crayfish in Australia.
The common yabby is native to eastern Australia and extends from South Australia, northward to southern parts of the Northern Territory, and eastward to the Great Dividing Range (Eastern Highlands) (Souty-Grosset
The common yabby inhabits temperate and tropical climates. In aquaculture, the yabby tolerates the wide range of water temperatures from 1 to 35 °C (34 to 95 °F) and with an optimal water temperature range of 20 to 25 °C (68 to 77 °F) (Withnall 2000). Growth halts below 15 °C (59 °F) and above 34 °C (93 °F), partial hibernation (decreased metabolism and feeding) occurs below 16 °C (61 °F), and death occurs when temperatures rise above 36 °C (97 °F) (Gherardi 2011a). The yabby can also survive drought for several years by sealing itself in a deep burrow (burrows well over 5 meters (m; 16.4 feet (ft)) have been found) and aestivating (the crayfish's respiration, pulse, and digestion nearly cease) (NSW DPI 2015).
This species can tolerate a wide range of dissolved oxygen concentrations and salinities (Mills and Geddes 1980) but prefers salinities less than 8 ppt (Withnall 2000, Gherardi 2011a). Growth ceases at salinities above 8 ppt (Withnall 2000). This correlates with Beatty's (2005) study where all yabbies
The common yabby resides in a variety of habitats, including desert mound springs, alpine streams, subtropical creeks, rivers, billabongs (small lake, oxbow lake), temporary lakes, swamps, farm dams, and irrigation channels (Gherardi 2011a). The yabby is found in mildly turbid waters and muddy or silted bottoms. The common yabby digs burrows that connect to waterways (Withnall 2000). Burrowing can result in unstable and collapsed banks (Gherardi 2011a).
The common yabby is commercially valuable and is frequently imported by countries for aquaculture, aquariums, and research (Gherardi 2011a); it is raised in aquaculture as food for humans (NSW DPI 2015). This species has spread throughout Australia, and its nonnative range extends to New South Wales east of the Great Dividing Range, Western Australia, and Tasmania. This crayfish species was introduced to Western Australia in 1932 for commercial aquaculture from where it escaped and established in rivers and irrigation dams (Souty-Grosset
The common yabby has been described as a “baby lobster” because of its relatively large body size for a crayfish and because of its unusually large claws. Yabbies have a total body length up to 15 cm (6 in) with a smooth external carapace (exoskeleton) (Souty-Grosset
Most common yabbies live 3 years with some living up to 6 years (Souty-Grosset
The common yabby grows through molting, which is shedding of the old carapace and then growing a new one (Withnall 2000). A juvenile yabby will molt every few days, whereas, an adult yabby may molt only annually or semiannually (Withnall 2000).
The common yabby is an opportunistic omnivore with a carnivorous summer diet and herbivorous winter diet (Beatty 2005). The diet includes fish (
The common yabby is affected by at least ten parasites (Jones and Lawrence 2001), including the crayfish plague (caused by
The common yabby has a quick growth and maturity rate, high reproductive rate, and generalist diet. These attributes, in addition to the species' tolerance for a wide range of freshwater habitats, make the common yabby an efficient invasive species. Additionally, the invasive range of the common yabby is expected to expand with climate change (Gherardi 2011a). Yabbies can also live on land and travel long distances by walking between water bodies (Gherardi 2011b:129).
The common yabby may reduce biodiversity through competition and predation with native species. In its nonnative range, the common yabby has proven to out-compete native crayfish species for food and habitat (Beatty 2006, Gherardi 2011a). Native freshwater crayfish species are also at risk from parasitic infections from the common yabby (Gherardi 2011a).
Only one of the 11 species, the zander, is present in the wild within the United States. There has been a small established population of zander within Spiritwood Lake (North Dakota) since 1989. Crucian carp were reportedly introduced to Chicago lakes and lagoons during the early 1900s. Additionally, Nile perch were introduced to Texas reservoirs between 1978 and 1985. However, neither the crucian carp nor the Nile perch established populations, and these two species are no longer present in the wild in U.S. waters. These examples demonstrate that the interest may exist for future attempts at introductions into the United States for these and the other species. Because these species are not yet present in the United States, except for one species in one lake, but have been introduced, become established, and been documented as causing harm in countries outside of their native ranges, regulating them now to prohibit importation and interstate transportation and thus prevent the species' likely introduction and establishment in the wild and likely harm to human beings, to the interests of agriculture, or to wildlife or wildlife resources is critical to preventing their injurious effects in the United States.
The first step that the Service performed in selecting species to evaluate for listing as injurious was to prepare a rapid screen. We asked, without doing a full risk assessment on each potential species, how could we quickly assess which species out of thousands of foreign species not yet found in the United States should be categorized as high-risk of invasiveness? Our method was to conduct rapid screenings and compile the information in Ecological Risk Screening Summaries (ERSS) for each species to determine the Overall Risk Assessment of each species. More information on the ERSS process and its peer review is posted online at
For the 11 species under consideration, all species have a high risk for history of invasiveness.
For the 11 species considered, overall climate match ranged from medium for the Nile perch, to high for the remaining nine fish and one crayfish species. The climate match analysis (Australian Bureau of Rural Sciences 2010) incorporates 16 climate variables to calculate climate scores that can be used to calculate a Climate 6 ratio (see USFWS 2014 for additional details). Using the Climate 6 ratio, species can be categorized as having a low (0.000 to 0.005), medium (greater than 0.005 to less than 0.103), or high (greater than 0.103) climate match (Bomford 2008; USFWS 2014). This climate matching method is used by some projects funded under the Great Lakes Restoration Initiative to direct efforts to prevent the invasion of aquatic species in the Great Lakes. For this proposed rule, the Service expanded the source ranges (native and nonnative distribution) of several species for the climate match from those listed in the ERSSs. The revised source ranges included additional locations referenced in FishBase (Froese and Pauly 2010), the CABI ISC, and the
For the 11 species under consideration, the certainty of assessment (with sufficient and reliable information) was high for all species.
The Overall Risk Assessment, which is determined from a combination of scores for history of invasiveness, climate match, and certainty of assessment, was found to be high for all 11 species. A high score for the Overall Risk Assessment indicates that the assessed species would be a greater threat of invasiveness than a species with a low score. The Amur sleeper, crucian carp, Eurasian minnow, European perch, Nile perch, Prussian carp, roach, stone moroko, wels catfish, zander, and common yabby are high-risk species.
Once we determined that the 11 species were good candidates for evaluating because of their invasive risk, we used the criteria below to evaluate whether a species qualifies as injurious under the Act. The analysis using these criteria serve as a general basis for the Service's regulatory decision regarding all injurious wildlife listings. Biologists within the Service evaluated both the factors that contribute to and the factors that reduce the likelihood of injuriousness. These factors were developed by the Service.
(1) Factors that contribute to being considered injurious:
• The likelihood of release or escape;
• Potential to survive, become established, and spread;
• Impacts on wildlife resources or ecosystems through hybridization and competition for food and habitats, habitat degradation and destruction, predation, and pathogen transfer;
• Impacts to endangered and threatened species and their habitats;
• Impacts to human beings, forestry, horticulture, and agriculture; and
• Wildlife or habitat damages that may occur from control measures.
(2) Factors that reduce the likelihood of the species being considered as injurious:
• Ability to prevent escape and establishment;
• Potential to eradicate or manage established populations (for example, making organism sterile);
• Ability to rehabilitate disturbed ecosystems;
• Ability to prevent or control the spread of pathogens or parasites; and
• Any potential ecological benefits to introduction.
For this proposed rule, a hybrid is defined as any progeny (offspring) from any cross involving a parent from one of the 11 species. These progeny would likely have the same or similar biological characteristics of the parent species (Ellstrand and Schierenbeck 2000, Mallet 2007), which, according to our analysis, would indicate that they are injurious to human beings, to the interests of agriculture, or to wildlife or wildlife resources of the United States.
This species is not currently found within the United States. The crucian carp has been introduced and become established in Croatia, Greece, France, Italy, and England (Crivelli 1995, Kottelat and Freyhof 2007).
Potential pathways of introduction into the United States include stocking for recreational fishing and through misidentified shipments of ornamental fish (Wheeler 2000, Hickley and Chare 2004, Innal and Erk'ahan 2006, Sayer
The crucian carp prefers a temperate climate (as found in much of the United States) and tolerates high summer air temperatures (up to 35 °C (95 °F)) and can survive in poorly oxygenated waters (Godard and Copp 2012). The crucian carp has an overall high climate match with a Climate 6 ratio of 0.355. This species has a high climate match throughout much of the Great Lakes region, southeastern United States, and southern Alaska and Hawaii. Low matches occur in the desert Southwest.
If introduced, the crucian carp is likely to spread and become established in the wild due to its ability to be a habitat and diet generalist and adapt to new environments, to its long life span (maximum 10 years), and to its ability to establish outside of the native range.
As mentioned previously, the crucian carp can compete with native fish species, alter the health of freshwater habitats, hybridize with other invasive and injurious carp species, and serve as a vector of the OIE-reportable fish disease SVC (Ahne
The crucian carp has a broad climate match throughout the country, and thus its introduction and establishment
The ability of crucian carp to hybridize with other species of Cyprinidae (including common carp) may exacerbate competition over limited food resources and ecosystem changes, and thus, further challenge native species (including native threatened or endangered fish species).
Crucian carp harbor the fish disease SVC and additional parasitic infections. Although SVC also infects other carp species, this disease can also be transmitted through the water column to native fish species causing fish mortalities. Mortality rates from SVC have been documented up to 70 percent among juvenile fish and 30 percent among adult fish (Ahne
We have no reports of the crucian carp being directly harmful to humans.
The introduction of crucian carp is likely to affect agriculture by contaminating commercial aquaculture. This fish species can harbor Spring Viremia of Carp (SVC), which can infect numerous fish species, including common carp, koi (
Lab experiments indicate that the piscicide rotenone (a commonly used natural fish poison) could be used to control a crucian carp population (Ling 2003). However, rotenone is not target-specific (Wynne and Masser 2010). Depending on the applied concentration, rotenone kills other aquatic species in the water body. Some fish species are more susceptible than others, and the use of this piscicide may result in killing native species. Control measures that would harm other wildlife are not recommended as mitigation plans to reduce the injurious characteristics of this species and therefore do not meet control measures under the Injurious Wildlife Evaluation Criteria.
No other control methods are known for the crucian carp, but several other control methods are currently being used or are in development for introduced and invasive carp species of other genera. For example, the U.S. Geological Survey (USGS) is developing a method to orally deliver a piscicide (Micromatrix) specifically to invasive bighead carp (
We are not aware of any documented ecological benefits for the introduction of crucian carp.
This species is not currently found within the United States. The Eurasian minnow was introduced to new waterways in its native range of Europe and Asia (Sandlund 2008). This fish species has been introduced to new locations in Norway outside of its native range there (Sandlund 2008, Hesthagen and Sandlund 2010).
Likely pathways of introduction include release or escape when used as live bait, unintentional inclusion in the transport water of intentionally stocked fish (often with salmonids), and intentional introduction for vector (insect) management (Sandlund 2008). Once introduced, this species can spread and establish in nearby waterways.
The Eurasian minnow prefers a temperate climate (Froese and Pauly 2013). This minnow is capable of establishing in a variety of aquatic ecosystems ranging from freshwater to brackish water (Sandlund 2008). The Eurasian minnow has an overall high climate match with a Climate 6 ratio of 0.397. The highest climate matches are in the northern States, including Alaska. The lowest climate matches are in the Southeast and Southwest.
If introduced to the United States, the Eurasian minnow is highly likely to spread and become established in the wild due to this species' traits as a habitat generalist and generalist predator, with adaptability to new environments, high reproductive potential, long life span, extraordinary mobility, social nature, and proven invasiveness outside of the species' native range.
Introduction of the Eurasian minnow can affect native species through several mechanisms, including competition over resources, predation, and parasite transmission. Introduced Eurasian minnows have a more serious effect in waters with fewer species than those waters with a more developed, complex fish community (Museth
Eurasian minnow introductions have also disturbed freshwater benthic invertebrate communities (Næstad and Brittain 2010). Increased predation by Eurasian minnows has led to shifts in invertebrate populations and changes in benthic diversity (Hesthagen and Sandlund 2010). Many of the invertebrates consumed by the Eurasian minnow are also components of the diet of the brown trout, thus exacerbating competition between the introduced Eurasian minnow and brown trout (Hesthagen and Sandlund 2010). Additionally, Eurasian minnows have been shown to compete with brown trout (Hesthagen and Sandlund 2010) and to consume vendace (a salmonid) larvae (Huusko and Sutela 1997). If introduced, the Eurasian minnow's diet may include the larvae of U.S. native salmonids, including Atlantic salmon, sockeye salmon (
The Eurasian minnow serves as a host to parasites, such as
We have no reports of the Eurasian minnow being harmful to humans.
The Eurasian minnow may impact agriculture by affecting aquaculture. This species harbors a parasite that may infect other fish species and can cause high fish mortality (Bakke
Once introduced, it is difficult and costly to control a Eurasian minnow population (Sandlund 2008). Eradication may be possible from small water bodies in cases where the population is likely to serve as a center for further spread, but no details are given on how to accomplish that (Sandlund 2008). Control may also be possible using habitat modification or biocontrol (introduced predators); however, we know of no published accounts of long-term success by either method. Both control measures of habitat modification and biocontrol cause wildlife or habitat damages and are expensive mitigation strategies, and therefore, are not recommended or considered appropriate under the Injurious Wildlife Evaluation Criteria as a risk management plan for this species.
There has been one incidence where the Eurasian minnow was introduced as a biocontrol for the Tune fly (Simuliidae) (Sandlund 2008). However, we do not have information on the success of this introduction. We are not aware of any other documented ecological benefits associated with the Eurasian minnow.
This species is not found within the United States. However, it was recently reported to be established in waterways in southern Alberta, Canada, which is the first confirmed record in the wild in North America (Elgin
Potential pathways of introduction include stock enhancement, recreational fishing, and aquaculture. Once introduced, the Prussian carp will naturally disperse to new waterbodies.
The Prussian carp prefers a temperate climate and resides in a variety of freshwater environments, including those with low dissolved oxygen concentrations and increased pollution (Britton 2011). The Prussian carp has an overall high climate match with a Climate 6 ratio of 0.414. This fish species has a high climate match to the Great Lakes region, northern Plains, some western mountain States, and parts of California. The Prussian carp has a medium climate match to much of the United States, including southern Alaska and regions of Hawaii. This species has a low climate match to the southeastern United States, especially Florida and along the Gulf Coast. This species is not found within the United States but has been recently discovered as established in Alberta, Canada (Elgin
If introduced, the Prussian carp is likely to spread and establish as a consequence of its tolerance to poor quality environments, rapid growth rate, very rare ability to reproduce from unfertilized eggs (gynogenesis), and proven invasiveness outside of the native range.
The Prussian carp is closely related and behaviorally similar to the crucian carp (Godard and Copp 2012). As with crucian carp, introduced Prussian carp may compete with native fish species, alter freshwater ecosystems, and serve as a vector for parasitic infections. Introduced Prussian carp have been responsible for the decreased biodiversity and overall populations of native fish (including native Cyprinidae), invertebrates, and plants (Anseeuw
Prussian carp can alter freshwater habitats. This was documented in Lake Mikri Prespa (Greece), where scientists correlated increased turbidity with increased numbers of Prussian carp (Crivelli 1995). This carp species increased turbidity levels by disturbing sediment during feeding. These carp also intensively fed on zooplankton, thus resulting in increased phytoplankton abundance and phytoplankton blooms (Crivelli 1995). Increased turbidity results in imbalances in nutrient cycling and ecosystem energetics. If introduced to the United States, Prussian carp could cause increased lake and pond turbidity, increased phytoplankton blooms, imbalances to ecosystem nutrient cycling, and altered freshwater ecosystems.
Several different types of parasitic infections, such as black spot disease (Posthodiplostomatosis) and from
Prussian carp may compete with native fish species and may replace them in the trophic scheme. Large populations of Prussian carp can cause heavy predation on aquatic plants and invertebrates (Anseeuw
We have no reports of the Prussian carp being harmful to humans.
The Prussian carp may impact agriculture by affecting aquaculture. As mentioned in the
We are not aware of any documented control methods for the Prussian carp. The piscicide rotenone has been used to control the common carp and crucian carp population (Ling 2003) and may be effective against Prussian carp. However, rotenone is not target-specific (Wynne and Masser 2010). Depending on the applied concentration, rotenone kills other aquatic species in the water body. Some fish species are more susceptible than others, and, even if effective against Prussian carp, the use of this piscicide may result in killing native species (Allen
We are not aware of any documented ecological benefits for the introduction of the Prussian carp.
This species is not found in the United States. The roach has been introduced and become established in England, Ireland, Italy, Madagascar, Morocco, Cyprus, Portugal, the Azores, Spain, and Australia. (Rocabayera and Veiga 2012:Dist. table).
Potential introduction pathways include stocking for recreational fishing and use as bait fish. Once introduced, released, or escaped, the roach naturally disperses to new waterways within the watershed.
This species prefers a temperate climate and can reside in a variety of freshwater habitats (Riehl and Baensch 1991). Hydrologic changes, such as weirs and dams that extend aquatic habitats that are otherwise scarce, enhance the potential spread of the roach (Rocabayera and Veiga 2012). The roach has an overall high climate match to the United States with a Climate 6 ratio of 0.387. Particularly high climate matches occurred in southern and central Alaska, the Great Lakes region, and the western mountain States. The Southeast and Southwest have low climate matches.
If introduced, the roach is likely to spread and establish due to its highly adaptive nature toward habitat and diet choice, high reproductive rate, ability to reproduce with other cyprinid species, long life span, and extraordinary mobility. This species has also proven invasive outside of its native range.
Potential effects to native species from the introduction of the roach include competition over food and habitat resources, hybridization, altered ecosystem nutrient cycling, and parasite and pathogenic bacteria transmission. The roach is a highly adaptive species and will switch between habitats and food sources to best avoid predation and competition from other species (Winfield and Winfield 1994:385–6). The roach consumes an omnivorous generalist diet, including benthic invertebrates (especially mollusks), zooplankton, plants, and detritus (Rocabayera and Veiga 2012). With such a varied diet, the roach would likely compete with numerous native fish species from multiple trophic levels. Such species may include shiners, daces, chubs, and stonerollers, several of which are federally listed as endangered or threatened.
Likewise, introduction of the roach would likely detrimentally affect native mollusk species (including mussels and snails), some of which may be federally endangered or threatened. One potentially affected species is the endangered Higgins' eye pearly mussel (
In Ireland, the roach has hybridized with the rudd (
Large populations of the roach may alter nutrient cycling in lake ecosystems. Increased populations of roach may prey heavily on zooplankton, thus resulting in increased phytoplankton communities and algal blooms (Rocabayera and Veiga 2012). These changes alter nutrient cycling and can consequently affect native aquatic species that depend on certain nutrient balances.
Several parasitic infections, including worm cataracts, black spot disease, and tapeworms, have been associated with the roach (Rocabayera and Veiga 2012). The pathogenic bacterium
We have no reports of the roach being harmful to humans.
The roach may affect agriculture by decreasing aquaculture productivity. Roach can hybridize with other fish species of the subfamily Leuciscinae, including rudd and bream (Pitts
Roaches harbor several parasitic infections (Rocabayera and Veiga 2012) that can impair fish physiology and health. The pathogenic bacterium
An introduced roach population would be difficult to control (Rocabayera and Veiga 2012). Application of the piscicide rotenone may be effective for limited populations of small fish. However, rotenone is not target-specific (Wynne and Masser 2010). Depending on the applied concentration, rotenone kills other aquatic species in the water body. Some fish species are more susceptible than others, and the use of this piscicide may
We are not aware of any documented ecological benefits for the introduction of the roach.
This fish species is not found within the United States. The stone moroko has been introduced and become established throughout Europe and Asia. Within Asia, this fish species is invasive in Afghanistan, Armenia, Iran, Kazakhstan, Laos, Taiwan, Turkey, and Uzbekistan (Copp 2007). In Europe, this fish species' nonnative range includes Albania, Austria, Belgium, Bulgaria, Czech Republic, Denmark, France, Germany, Greece, Hungary, Italy, Lithuania, Moldova, Montenegro, the Netherlands, Poland, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Ukraine, and the United Kingdom (Copp 2007). The stone moroko's nonnative range also includes Algeria and Fiji (Copp 2007).
The primary introduction pathways are as unintentional inclusion in the transport water of intentionally stocked fish shipments for both recreational fishing and aquaculture, released or escaped bait, and released or escaped ornamental fish. Once introduced, the stone moroko naturally disperses to new waterways within a watershed. Since the 1960s, this fish has invaded nearly every European country and many Asian countries (Copp
The stone moroko inhabits a temperate climate (Baensch and Riehl 1993) and a variety of freshwater habitats, including those with poor dissolved oxygen concentrations (Copp 2007). The stone moroko has an overall high climate match with a Climate 6 ratio of 0.557. This species has a high or medium climate match to most of the United States. The highest matches are in the Southeast, Great Lakes, central plains, and West Coast.
If introduced, the stone moroko is highly likely to spread and establish. This fish species is a habitat generalist, diet generalist, quick growing, highly adaptable to new environments, and highly mobile. Additionally, the stone moroko has proven invasive outside of its native range (Copp 2007, Kottelat and Freyhof 2007, Witkowski 2011).
In much of the stone moroko's nonnative range, the introduction of this species has been linked to the decline of native freshwater fish species (Copp 2007). The stone moroko could potentially adversely affect native species through predation, competition, disease transmission, and altering freshwater ecosystems (Witkowski 2011).
Stone moroko introductions have mostly originated from unintentional inclusion in the transport water of intentionally stocked fish species. In many stocked ponds, the stone moroko actually outcompetes the farmed fish species for food resources, which results in decreased production of the farmed fish (Witkowski 2011). The stone moroko's omnivorous diet includes insects, fish, fish eggs, molluscs, planktonic crustaceans, algae (Froese and Pauly 2014), and plants (Kottelat and Freyhof 2007). With this diet, the stone moroko would compete with many native U.S. freshwater fish, including minnow, dace, sunfish, and darter species.
In the United Kingdom, Italy, China, and Russia, the introduction of the stone moroko correlates with dramatic declines in native fish populations and species diversity (Copp 2007). The stone moroko first competes with native fish for food resources and then predates on the eggs, larvae, and juveniles of these same native fish species (Pinder 2005, Britton
The stone moroko is a vector of the pathogenic, rosette-like agent
The stone moroko consumes large quantities of zooplankton. The declines in zooplankton population results in increased phytoplankton populations, which in turn causes algal blooms and unnaturally high nutrient loads (eutrophication). These changes can cause imbalanced nutrient cycling, decrease dissolved oxygen concentrations, and adversely impact the health of native aquatic species.
We have no reports of the stone moroko being harmful to humans.
The stone moroko may affect agriculture by decreasing aquaculture productivity. This species often contaminates farmed fish stocks and competes with the farmed species for food resources, resulting in decreased aquaculture productivity (Witkowski 2011). The stone moroko is an unaffected carrier of the pathogenic, rosette-like agent
An established, invasive stone moroko population would be both difficult and costly to control (Copp 2007). Additionally, this fish species has a higher tolerance for the piscicide rotenone than most other fish belonging to the cyprinid group (Allen
We are not aware of any documented ecological benefits for the introduction of the stone moroko.
This species is not currently found within the United States. The Nile perch is invasive in the Kenyan, Tanzanian, and Ugandan watersheds of Lake Victoria and Lake Kyoga (Africa). This species has also been introduced to Cuba (Welcomme 1988).
This species was stocked in Texas reservoirs, although this population failed to establish (Fuller
The Nile perch prefers a tropical climate and can inhabit a variety of freshwater and brackish habitats (Witte 2013). The Nile perch has an overall medium climate match with a Climate 6 ratio of 0.038. Of the 11 species in this rule, the Nile perch has the only overall medium climate match to the United States. However, this fish species has a high climate match to the Southeast (Florida and Gulf Coast), Southwest (California), Hawaii, Puerto Rico, and the U.S. Virgin Islands.
If introduced into the United States, the Nile perch is likely to spread and establish due to this species' nature as a habitat generalist and generalist predator, long life span, quick growth rate, high reproductive rate, extraordinary mobility, and proven invasiveness outside of the species' native range (Witte 2013, Asila and Ogari 1988, Ribbinick 1982).
Potential impacts of introduction of the Nile perch include outcompeting and preying on native species, altering habitats and trophic systems, and disrupting ecosystem nutrient cycling. The Nile perch can produce up to 15 million eggs per breeding cycle (Asila and Ogari 1988), likely contributing to this species' efficiency and effectiveness in establishing an introduced population.
Historical evidence from the Lake Victoria (Africa) basin indicate that the Nile perch outcompeted and preyed on at least 200 species endemic fish species, leading to their extinction (Kaufman 1992, Snoeks 2010, Witte 2013). Many of the affected species were haplochromine cichlid fish species, and the populations of native lung fish (
The haplochromine cichlid species comprised 15 subtrophic groups with varied food (detritus, phytoplankton, algae, plants, mollusks, zooplankton, insects, prawns, crabs, fish, and parasites) and habitat preferences (Witte and Van Oijen 1990, Van Oijen 1996). The depletion of so many fish species has drastically altered the Lake Victoria ecosystem's trophic level structure and biodiversity. These changes resulted in abnormally high lake eutrophication and frequency of algal blooms (Witte 2013).
The depletion of the native fish species in Lake Victoria by Nile perch led to the loss of income and food for local villagers. Nile perch are not a suitable replacement for traditional fishing. Fishing for this larger species requires equipment that is prohibitively more expensive, requires processing that cannot be done by the wife and children, requires the men to be away for extended periods, and decreases the availability of fish for household consumption (Witte 2013).
If introduced to the United States, the Nile perch are expected to prey on small native fish species, such as mudminnows, cyprinids, sunfishes, and darters. Nile perch would likely prey on, compete with, and decrease the species diversity of native cyprinid fish. Nile perch are expected to compete with larger native fish species, including largemouth bass, blue catfish (
We have no reports of the Nile perch being harmful to humans.
We are not aware of any reported effects to agriculture. However, Nile perch may affect aquaculture if they are unintentionally introduced into aquaculture operations in the United States, such as when invaded watersheds flood aquaculture ponds or by accidentally being included in a shipment of fish, by outcompeting and preying on the aquacultured fish.
Nile perch grow to be large fish with a body length of 2 m (6 ft) and maximum weight of 200 kg (440 lb) (Ribbinick 1987). Witte (2013) notes that this species would be difficult and costly to control. We are not aware of any documented reports of successfully controlling or eradicating an established Nile perch population.
We are not aware of any documented ecological benefits for the introduction of the Nile perch.
This species has not been reported within the United States. The Amur sleeper is invasive in Europe and Asia in the countries of Belarus, Bulgaria, Croatia, Estonia, Hungary, Latvia, Lithuania, Moldova, Poland, Romania, Serbia, Slovakia, Ukraine, Russia, and Mongolia (Froese and Pauly 2014, Grabowska 2011).
Although the Amur sleeper has not yet been introduced to the United States, the likelihood of introduction, release, or escape is high as evidenced by the history of introduction over a broad geographic region of Eurasia. Since its first introduction outside of its native range in 1916, the Amur sleeper has invaded 15 Eurasian countries and become a widespread, invasive fish throughout European freshwater ecosystems (Copp
Once this species has been introduced, it has proven to be capable of establishing (Reshetnikov 2004). The established populations can have rapid rates of expansion. Upon introduction into the Vistula River in Poland, the Amur sleeper expanded its range by 44 km (27 mi) the first year and up to 197 km (122 mi) per year subsequently (Grabowska 2011).
Most aquatic species are constrained in distribution by temperature, dissolved oxygen levels, and lack of flowing water. However, the Amur sleeper has a wide water temperature preference (Baensch and Riehl 2004), can live in poorly oxygenated waters, and may survive in dried-out or frozen water bodies by burrowing into and hibernating in the mud (Grabowska 2011). The Amur sleeper has an overall high climate match with a Climate 6 ratio of 0.376. The climate match is highest in the Great Lakes region (Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota), central and high Plains (Iowa, Nebraska, and Missouri), western mountain States (South Dakota, North Dakota, Montana, Wyoming, and Colorado), and central to eastern Alaska.
If introduced, the Amur sleeper is extremely likely to spread and become established in the wild due to this species' ability as a habitat generalist, generalist predator, rapid growth, high reproductive potential, adaptability to new environments, extraordinary mobility, and a history of invasiveness outside of the native range.
The Amur sleeper is a voracious generalist predator whose diet includes crustaceans, insects, and larvae of mollusks, fish, and amphibian tadpoles (Bogutskaya and Naseka 2002, Reshetnikov 2008). Increased predation with the introduction of the Amur sleeper has resulted in decreased species richness and decreased population of native fish (Grabowska 2011). Declines in lower trophic level populations (invertebrates) result in increased competition among native predatory fish, including the European mudminnow (
In some areas, the Amur sleeper's eating habits have been responsible for the dramatic decline in juvenile fish and amphibian species (Reshetnikov 2003). Amur sleepers prey on juvenile stages and can cause decreased reproductive success and reduced populations of the native fish and amphibians (Mills
The introduction or establishment of the Amur sleeper is likely to reduce native wildlife biodiversity. In the Selenga River (Russia), the Amur sleeper competes with native Siberian roach (
Species similar to Siberian roach and Siberian dace that are native to the United States include those of the genus
Additionally, the Amur sleeper harbors parasites, including
We have no reports of Amur sleeper being harmful to humans.
The Amur sleeper may affect agriculture by decreasing aquaculture productivity. This fish species hosts parasites, including
Once introduced and established, it would be difficult, if not impossible, to control or eradicate the Amur sleeper. All attempts to eradicate the Amur sleeper once it had established a reproducing population have been unsuccessful (Litvinov and O'Gorman 1996). Natural predators include pike, snakeheads, and perch (Bogutskaya and Naseka 2002). Not all freshwater systems have these or similar predatory species, and thus would allow the Amur sleeper population to be uncontrolled.
Some studies have indicated that the Amur sleeper may be eradicated by adding calcium chloride (CaCl
We are not aware of any documented ecological benefits for the introduction of the Amur sleeper.
This fish species is not found within the United States. The European perch has been introduced and become established in several countries, including Ireland, Italy, Spain, Australia, New Zealand, China, Turkey, Cyprus, Morocco, Algeria, and South Africa.
The main pathway of introduction is through stocking for recreational fishing. Once stocked, this fish species has expanded its nonnative range by swimming through connecting waterbodies to new areas within the same watershed.
The European perch prefers a temperate climate (Riehl and Baensch 1991, Froese and Pauly 2014). This species can reside in a wide variety of aquatic habitats ranging from freshwater to brackish water (Froese and Pauly 2014). The European perch has a Climate 6 ratio of 0.438, with locally high matches to the Great Lakes region, central Texas, western mountain States, and southern and central Alaska. Hawaii ranges from low to high matches. Much of the rest of the country has a medium climate match.
If introduced to the United States, the European perch is likely to spread and establish in the wild as a generalist predator that is able to adapt to new environments and outcompete native fish species. Additionally, this species has proven to be invasive outside of its native range.
The European perch can impact native species through outcompeting and preying on them and by transmitting disease. This introduced fish species competes with other European native species for both food and habitat resources (Closs
In addition to potentially competing with the native yellow perch (
European perch prey on zooplankton, macroinvertebrates, and fish; thus, the introduction of this species can significantly alter trophic level cycling and affect native freshwater communities (Closs
The European perch can also harbor and spread the viral disease Epizootic Haematopoietic Necrosis (EHN) (NSW DPI 2013). This virus can cause mass fish mortalities and affects silver perch, Murray cod,
We have no reports of the European perch being harmful to humans.
The European perch may affect agriculture by decreasing aquaculture productivity. The European perch may potentially spread the viral disease Epizootic Haematopoietic Necrosis (EHN) (NSW DPI 2013) to farmed fish in aquaculture facilities. Although this virus is currently restricted to Australia, this disease can cause mass fish mortalities and is known to affect other fish species (NSW DPI 2013).
It would likely be extremely difficult, if not impossible, to control or eradicate a population of European perch. However, Closs
We are not aware of any documented ecological benefits for the introduction of the European perch.
The zander was intentionally introduced into Spiritwood Lake (North Dakota) in 1989 for recreational fishing. The North Dakota Game and Fish Department reports a small, established population in this lake (Fuller 2009). The most recent report was of a 32-in (81.3 cm) fish caught by an angler in 2013 (North Dakota Game and Fish 2013). This was the largest zander in the lake reported to date, which could indicate that the species is finding suitable living conditions. We are not aware of any other reports of zanders within the United States. This fish species has been introduced and become established through much of Europe, regions of Asia (China, Kyrgyzstan, and Turkey), and Africa (Algeria, Morocco, and Tunisia). Within Europe, zanders have established populations in Belgium, Bulgaria, Croatia, Cyprus, Denmark, France, Italy, the Netherlands, Portugal, the Azores, Slovenia, Spain, Switzerland, and the United Kingdom.
The zander has been introduced to the United States and a small population exists in Spiritwood Lake, North Dakota. Primary pathways of introduction have
The zander prefers a temperate climate (Froese and Pauly 2014). This species resides in a variety of freshwater and brackish environments, including turbid waters with increased nutrient concentrations (Godard and Copp 2011). The overall climate match is high with a Climate 6 ratio of 0.374. The zander has high climate matches in the Great Lakes region, northern Plains, western mountain States, and Pacific Northwest. Medium climate matches include southern Alaska, western mountain States, central Plains, and mid-Atlantic and New England regions. Low climate matches occur in Florida, along the Gulf Coast, and desert Southwest regions.
If introduced, the zander would likely establish and spread as a consequence of its nature as a generalist predator, ability to hybridize with multiple fish species, extraordinary mobility, long life span (maximum 24 years) (Godard and Copp 2011), and proven invasiveness outside of the native range.
The zander may affect native fish species by outcompeting and preying on them, transferring pathogens to them, and hybridizing with them. The zander is a top-level predator and competes with other native piscivorous fish species. In Western Europe, increased competition from introduced zanders resulted in population declines of native northern pike and European perch (Linfield and Rikards 1979). If introduced to the United States, the zander is projected to compete with native top-level predators such as the closely related walleye (
The zander is a piscivorous predator with a diet that includes juvenile smelt, ruffe, European perch, vendace, roach, and other zanders (Kangur and Kangur 1998). The zander also feeds on juvenile brown trout and Atlantic salmon (Jepsen
The zander is a vector for the trematode parasite
The zander can hybridize with both the European perch and Volga perch (
We are not aware of any documented reports of the zander being harmful to humans.
The zander may impact agriculture by affecting aquaculture. This species is a vector for the trematode parasite
An established population of zanders would be both difficult (if not impossible) and costly to control (Godard and Copp 2011). In the United Kingdom (North Oxford Canal), electrofishing was unsuccessful at eradicating localized populations of zander (Smith
Zanders have been stocked for biomanipulation of small planktivorous fish (cyprinid species) in a small, artificial impoundment in Germany to improve water transparency with some success (Drenner and Hambright 1999). However, in their discussion on using zanders for biomanipulation, Mehner
This fish species is not found in the wild in the United States. The wels catfish has been introduced and become established in China; Algeria, Syria, and Tunisia; and the European countries of Belgium, Bosnia-Herzegovina, Croatia, Cyprus, Denmark, Finland, France, Italy, Portugal, Spain, and the United Kingdom (Rees 2012).
The wels catfish has not been introduced to U.S. ecosystems. Potential pathways of introduction include stocking for recreational fishing and aquaculture. This catfish species has also been introduced for biocontrol of cyprinid species in Belgium and through the aquarium and pet trade (Rees 2012). Wels catfish were introduced as a biocontrol for cyprinid fish in the Netherlands, where it became invasive (Rees 2012). Once introduced, this fish species can naturally disperse to connected waterways.
The wels catfish prefers a temperate climate. This species inhabits a variety of freshwater and brackish environments. This species has an overall high climate match with a Climate 6 ratio of 0.302. High climate matches occur in the Great Lakes, western mountain States, West Coast, and southern Alaska. All other regions had a medium or low climate match.
If introduced, the wels catfish is likely to establish and spread. This species is a generalist predator and fast growing, with proven invasiveness outside of the native range. Additionally, this species has a long life span (15 to 30 years, maximum of 80 years) (Kottelat and Freyhof 2007). This species has an extremely high reproductive rate (30,000 eggs per kg of body weight), with the maximum recorded at 700,000 eggs (Copp
The wels catfish may affect native species through outcompeting and preying on native species, transferring diseases to them, and altering their habitats. This catfish is a giant predatory fish (maximum 5 m (16 ft), 306 kg (675 lb)) (Copp
Typically utilizing an ambush technique but also known to be an opportunistic scavenger (Copp
The predatory nature of the wels catfish may also lead to species extirpation (local extinction) or the extinction of native species. In Lake Bushko (Bosnia), the wels catfish is linked to the extirpation of the endangered minnow-nase (
Furthermore, because the roach can hybridize with other fish species of the subfamily Leuciscinae as stated above, and this subfamily includes several U.S. native species, the roach will likely be able to hybridize with some U.S. native species.
The wels catfish is a carrier of the virus that causes SVC and may transmit this virus to native fish (Hickley and Chare 2004). The spread of SVC can deplete native fish stocks and disrupt the ecosystem food web. SVC transmission would further compound adverse effects of both competition and predation by adding disease to already-stressed native fish.
Additionally, this catfish species excretes large amounts of phosphorus and nitrogen to the freshwater environment (Schaus
There are anecdotal reports of exceptionally large wels catfish biting or dragging people into the water, as well as reports of a human body in a wels catfish's stomach, although it is not known if the person was attacked or scavenged after drowning (Der Standard 2009; Stephens 2013; National Geographic 2014). However, we have no documentation to confirm harm to humans.
The wels catfish could impact agriculture by affecting aquaculture. The wels catfish may transmit the fish disease SVC to other cyprinids (Hickley and Chare 2004, Goodwin 2009). An SVC outbreak could result in mass mortalities among farmed fish stocks at an aquaculture facility.
An invasive wels catfish population would be difficult, if not impossible, to control or manage (Rees 2012). We know of no effective methods of control once this species is introduced because of its ability to spread into connected waterways, high reproductive rate, generalist diet, and longevity.
We are not aware of any documented ecological benefits for the introduction of the wels catfish.
The common yabby has moved throughout Australia, and its nonnative range extends to New South Wales east of the Great Dividing Range, Western Australia, and Tasmania. This crayfish species was introduced to Western Australia in 1932, for commercial farming for food from where it escaped and established in rivers and irrigation dams (Souty-Grosset
The common yabby has not established a wild population with the United States. Souty-Grosset
The common yabby prefers a tropical climate but tolerates a wide range of water temperatures from 1 to 35 °C (34 to 95 °F) (Withnall 2000). This crayfish can also tolerate both freshwater and brackish environments with a wide range of dissolved oxygen concentrations (Mills and Geddes 1980). The overall climate match was high, with a Climate 6 ratio of 0.209 with a high climate match to the central Appalachians and Texas.
If introduced, the common yabby is likely to establish and spread within U.S. waters. This crayfish species is a true diet generalist with a diet of plant material, detritus, and zooplankton that
Potential impacts to native species from the common yabby include outcompeting native species for habitat and food resources, preying on native species, transmitting disease, and altering habitat. Competition between crayfish species is often decided by body size and chelae (pincer claw) size (Lynas 2007, Gherardi 2011a). The common yabby has large chelae (Austin and Knott 1996) and quick growth rate (Beatty 2005), allowing this species to outcompete smaller, native crayfish species. This crayfish species will exhibit aggressive behavior toward other crayfish species (Gherardi 2011a). In laboratory studies, the common yabby successfully evicted the smooth marron (
The common yabby consumes a similar diet to other crayfish species, resulting in competition over food resources. However, unlike most other crayfish species, the common yabby switches to an herbivorous, detritus diet when preferred prey is unavailable (Beatty 2006). This prey-switching allows the common yabby to outcompete native species (Beatty 2006). If introduced, the common yabby could affect macroinvertebrate richness, remove surface sediment deposits resulting in increased benthic algae and compete with native crayfish species for food, space, and shelter (Beatty 2006). Forty-eight percent of U.S. native crayfish are considered imperiled (Taylor
The common yabby eats plant detritus, algae and macroinvertebrates (such as snails) and small fish (Beatty 2006). Increased predation pressure on macroinvertebrates and fish may reduce populations to levels that are unable to sustain a reproducing population. Reduced populations or the disappearance of certain native species further alters trophic level cycling. For instance, species of freshwater snails are food sources for numerous aquatic animals (fish, turtles) and also may be used as an indicator of good water quality (Johnson 2009). However, in the past century, more than 500 species of North American freshwater snails have become extinct or are considered vulnerable, threatened, or endangered by the American Fisheries Society (Johnson
In laboratory simulations, this crayfish species also exhibited aggressive and predatory behavior toward turtle hatchlings (Bradsell
The common yabby is susceptible to the crayfish plague (
The common yabby digs deep burrows (Withnall 2000). This burrowing behavior has eroded and collapsed banks at some waterbodies (Withnall 2000). Increased erosion or bank collapse results in increased sedimentation, which increases turbidity and decreases water quality.
The common yabby's burrowing behavior undermines levees, berms, and earthen dams. Weakened levees, berms, and dams could result in problems and delays involving water delivery infrastructure. This could be a particular problem in southern Louisiana or the Everglades, where levees and berms are major features for flood control.
Several crayfish species, including the common yabby, can live in contaminated waters and accumulate high heavy metal contaminants within their tissues (King
The common yabby may affect agriculture by decreasing aquaculture productivity. The common yabby can be host to a variety of diseases and parasitic infections, including the crayfish plague, burn spot disease,
In Europe, two nonnative populations of the common yabby have been eradicated by introducing the crayfish plague. Since this plague is not known to affect North American crayfish species, this may be effective against an introduced common yabby population
We are not aware of any potential ecological benefits for introduction of the common yabby.
The crucian carp is highly likely to survive in the United States. This fish species prefers a temperate climate and has a native range that extends through north and central Europe. The crucian carp has a high climate match throughout much of the continental United States, Hawaii, and southern Alaska. If introduced, the crucian carp is likely to spread and become established due to its ability as a habitat generalist, diet generalist, and adaptability to new environments, long life span, and proven invasiveness outside of its native range.
Since the crucian carp is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, hybridization, and disease transmission on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of crucian carp to new locations, or recover ecosystems affected by this species, the Service finds the crucian carp to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The Eurasian minnow is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Eurasia. In the United States, the Eurasian minnow has a high climate match to the Great Lakes region, coastal New England, central and high Plains, West Coast, and southern Alaska. If introduced, the Eurasian minnow is likely to spread and establish due to its traits as a habitat generalist, generalist predator, adaptability to new environments, increased reproductive potential, long life span, extraordinary mobility, social nature, and proven invasiveness outside of its native range.
Since the Eurasian minnow is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at expanding its range; has negative impacts of competition, predation, and disease transmission on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the Eurasian minnow to new locations, or recover ecosystems affected by this species, the Service finds the Eurasian minnow to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The Prussian carp is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) that extends throughout Eurasia. In the United States, the Prussian carp has a high climate match to the Great Lakes region, central Plains, western mountain States, and California. This fish species has a medium climate match to much of the continental United States, southern Alaska, and regions of Hawaii. Prussian carp have already established in southern Canada near the U.S. border, validating the climate match in northern regions. If introduced, the Prussian carp is likely to spread and establish due to its tolerance to poor quality environments, rapid growth rate, ability to reproduce from unfertilized eggs, and proven invasiveness outside of its native range.
Since the Prussian carp is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, habitat alteration, hybridization, and disease transmission on native wildlife (including threatened and endangered species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the Prussian carp to new locations, or recover ecosystems affected by this species, the Service finds the Prussian carp to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The roach is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Europe, Asia, Australia, Morocco, and Madagascar. The roach has a high climate match to southern and central Alaska, regions of Washington, the Great Lakes region, and western mountain States, and a medium climate match to most of the United States. If introduced, the roach is likely to spread and establish due to its highly adaptive nature toward habitat and diet choice, high reproductive rate, ability to reproduce with other cyprinid species, long life span, extraordinary mobility, and proven invasiveness outside of its native range.
Since the roach is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, hybridization, altered habitat resources, and disease transmission on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the roach to new locations, or recover ecosystems affected by this species, the Service finds the roach to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The stone moroko is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Eurasia, Algeria, and Fiji. The stone moroko has a high climate match to the southeast United States, Great Lakes region, central Plains, northern Texas, desert Southwest, and West Coast. If introduced, the stone moroko is likely to spread and establish due to its traits as a habitat generalist, diet generalist, rapid growth rate, adaptability to new
Since the stone moroko is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, disease transmission, and habitat alteration on native wildlife (including threatened and endangered species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the stone moroko to new locations, or recover ecosystems affected by this species, the Service finds the stone moroko to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The Nile perch is highly likely to survive in the United States. This fish species is a tropical invasive and its current range (native and nonnative) includes central Africa. In the United States, the Nile perch has an overall medium climate match to the United States. However, this fish species has a high climate match to the Southeast, California, Hawaii, Puerto Rico, and the U.S. Virgin Islands. If introduced, the Nile perch is likely to spread and establish due to its nature as a habitat generalist, generalist predator, long life span, quick growth rate, high reproductive rate, extraordinary mobility, and proven invasiveness outside of its native range.
Since the Nile perch is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, and habitat alteration on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides (including through fisheries); and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the Nile perch to new locations, or recover ecosystems affected by this species, the Service finds the Nile perch to be injurious to the interests of wildlife and wildlife resources of the United States.
The Amur sleeper is highly likely to survive in the United States. Although this fish species native range only includes the freshwaters of China, Russia, North and South Korea, the species has a broad invasive range that extends throughout much of Eurasia. The Amur sleeper has a high climate match to the Great Lakes region, central and high plains, western mountain States, Maine, northern New Mexico, and southeast to central Alaska. If introduced, the Amur sleeper is likely to spread and establish due to its nature as a habitat generalist, generalist predator, rapid growth rate, high reproductive potential, adaptability to new environments, extraordinary mobility, and history of invasiveness outside of its native range.
Considering the Amur sleeper's past history of being released into the wild; ability to survive and establish outside of its native range; success at spreading its range; negative impacts of competition, predation, and disease transmission on native wildlife (including endangered and threatened species); negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the Amur sleeper to new locations, or recover ecosystems affected by this species, the Service finds the Amur sleeper to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The European perch is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Europe, Asia, Australia, New Zealand, South Africa, and Morocco. In the United States, the European perch has a medium to high climate match to the majority of the United States except the desert Southwest. This species has especially high climate matches in the southeast United States, Great Lakes region, central to southern Texas, western mountain States, and southern to central Alaska. If introduced, the European perch is likely to spread and establish due to its nature as a generalist predator, ability to adapt to new environments, ability to outcompete native species, and proven invasiveness outside of its native range.
Since the European perch is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, and disease transmission on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the European perch to new locations, or recover ecosystems affected by this species, the Service finds the European perch to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The zander is highly likely to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Europe, Asia, and northern Africa. In the United States, the zander has a high climate match to the Great Lakes region, northern Plains, western mountain States, and Pacific Northwest. Medium climate matches extend from southern Alaska, western mountain States, central Plains, and mid-Atlantic, and New England regions. If introduced, the zander is likely to spread and establish due to its nature as a generalist predator, ability to hybridize with other fish species, extraordinary mobility, long life span, and proven invasive outside of its native range.
Since the zander is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, parasite transmission, and hybridization with native wildlife; has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the zander to new locations, or recover ecosystems affected by this species, the Service finds the zander to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The wels catfish is highly likely to survive to survive in the United States. This fish species prefers a temperate climate and has a current range (native and nonnative) throughout Europe, Asia, and northern Africa. This fish
Since the wels catfish is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, disease transmission, and habitat alteration on native wildlife (including endangered and threatened species); has negative impacts on humans by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the wels catfish to new locations, or recover ecosystems affected by this species, the Service finds the wels catfish to be injurious to agriculture and to wildlife and wildlife resources of the United States.
The common yabby is highly likely to survive in the United States. This crustacean species prefers a tropical climate and has a current range (native and nonnative) that extends to Australia, Europe, China, South Africa, and Zambia. The common yabby has a high climate match to the eastern United States, Texas, regions of Washington, and regions of southern Alaska. If introduced, the common yabby is likely to spread and establish due to its traits as a diet generalist, quick growth rate, high reproductive rate, and proven invasiveness outside of its native range.
Since the common yabby is likely to escape or be released into the wild; is able to survive and establish outside of its native range; is successful at spreading its range; has negative impacts of competition, predation, and disease transmission on native wildlife (including endangered and threatened species); has negative impacts on humans through consumption of crayfish with heavy metal bioaccumulation and by reducing wildlife diversity and the benefits that nature provides; has negative impacts on agriculture by affecting aquaculture; and because it would be difficult to prevent, eradicate, or reduce established populations, control the spread of the common yabby to new locations, or recover ecosystems affected by this species, the Service finds the common yabby to be injurious to humans, to the interests of agriculture, and to wildlife and the wildlife resources of the United States.
The Service used the injurious wildlife evaluation criteria (see Injurious Wildlife Evaluation Criteria) and found that all of the 11 species are injurious to wildlife and wildlife resources of the United States, 10 are injurious to agriculture, and the yabby is injurious to humans. Because all 11 species are injurious, the Service proposes to add these 11 species to the list of injurious wildlife under the Act. The table shows a summary of the evaluation criteria for the 11 species.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order (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 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 the regulatory system must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these principles.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601,
The Service has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities. Of the 11 species, only one population of one species (zander) is found in the wild in the United States. Of the 11 species, one species (yabby) has evidence of being in negligible trade in the United States; three species (crucian carp, Nile perch, and wels catfish) have been imported in only small numbers since 2011; and seven species are not in U.S. trade. Therefore, businesses derive little or no revenue from their sale, and the economic effect in the United States of this proposed rule would be negligible, if not nil. The draft economic analysis that the Service prepared supports this conclusion (USFWS Draft Economic Analysis 2015). In addition, none of the species requires control efforts, and the rule would not impose any additional reporting or recordkeeping requirements. Therefore, we certify that, if made final as proposed, this rulemaking would not have a significant economic effect on small entities, as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The proposed rule is not a major rulemaking under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
a. Would not have an annual effect on the economy of $100 million or more.
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.
c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprise to compete with foreign-based enterprises.
The 11 species are not currently in trade or have been imported in only small numbers since 2011, when we specifically began to query the trade data for these species. Therefore, there should be a negligible effect, if any, to small businesses with this proposed rule.
The Unfunded Mandates Reform Act (2 U.S.C. 1501
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), the proposed rule does not have significant takings implications. Therefore, a takings implication assessment is not required since this rule would not impose significant requirements or limitations on private property use.
In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required since this rule would not have substantial direct effects on the States, in the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.
In accordance with E.O. 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the E.O. The rulemaking has been reviewed to eliminate drafting errors and ambiguity, was written to minimize litigation, provides a clear legal standard for affected conduct rather than a general standard, and promotes simplification and burden reduction.
This proposed rule does not contain any collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Service has reviewed this proposed rule in accordance with the criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with E.O. 12866 and 12988 as well as the Presidential Memorandum of June 1, 1998, all rules must be written in plain language. This means that each published rulemaking must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences;
(e) Use lists and tables wherever possible.
If you feel that this proposed rule has not met these requirements, send comments by one of the methods listed in the
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, or use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is not expected to affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
A complete list of all references used in this rulemaking is available from
The primary authors of this proposed rule are the staff of the Branch of Aquatic Invasive Species at the Service's Headquarters (see
Fish, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons discussed within the preamble, the U.S. Fish and Wildlife Service proposes to amend part 16, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:
18 U.S.C. 42.
(a) * * *
(2) * * *
(v) Any live fish, gametes, viable eggs, or hybrids of the following species in family Cyprinidae:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(vi) Any live fish, gametes, viable eggs, or hybrids of
(vii) Any live fish, gametes, viable eggs, or hybrids of
(viii) Any live fish, gametes, viable eggs, or hybrids of the following species in family Percidae:
(A)
(B)
(ix) Any live fish, gametes, viable eggs, or hybrids of
(x) Any live crustacean, gametes, viable eggs, or hybrids of
Federal Energy Regulatory Commission, DOE.
Final rule.
The Federal Energy Regulatory Commission (Commission) is amending its regulations that govern market-based rate authorizations for wholesale sales of electric energy, capacity, and ancillary services by public utilities pursuant to the Federal Power Act. This order represents another step in the Commission's efforts to modify, clarify and streamline certain aspects of its market-based rate program. The Commission is eliminating or refining certain existing filing requirements for market-based rate sellers as well as providing clarification regarding several issues. The specific components of this rule, in conjunction with other regulatory activities, are designed to ensure that the market-based rates charged by public utilities are just and reasonable.
1. On June 19, 2014, the Commission issued a Notice of Proposed Rulemaking (NOPR), pursuant to sections 205 and 206 of the Federal Power Act (FPA),
2. This Final Rule represents another step in the Commission's efforts to modify, clarify and streamline certain aspects of its market-based rate program. Some aspects of this Final Rule eliminate or refine existing filing requirements, while other aspects of the Final Rule require submission of additional information from market-based rate sellers. For example, this Final Rule redefines the default relevant geographic market for an independent power producer (IPP) with generation capacity located in a generation-only balancing authority and requires sellers to report all long-term firm purchases that have an associated long-term firm transmission reservation in their indicative screens and asset appendices. The Final Rule provides clarification on issues including capacity ratings and preparation of simultaneous transmission import limit (SIL) studies. Streamlining is accomplished through, for example, elimination of the land acquisition reporting requirement, reduction in the number of notice of change in status filings due to establishment of a 100 megawatt (MW) threshold for reporting new affiliations, and clarification that sellers need not report behind-the-meter generation in the indicative screens and asset appendices. The specific components of this rule, in conjunction with other regulatory activities, are designed to ensure that the market-based rates charged by public utilities are just and reasonable.
3. Pursuant to sections 205 and 206 of the FPA, the Commission is amending its regulations to revise subpart H to part 35 of title 18 of the Code of Federal Regulations (CFR), which governs market-based rate authorizations for wholesale sales of electric energy, capacity, and ancillary services by public utilities.
4. In 1988, the Commission began considering proposals for market-based pricing of wholesale power sales. The Commission acted on market-based rate proposals filed by various wholesale suppliers on a case-by-case basis. Over the years, the Commission developed a four-prong analysis to assess whether a seller should be granted market-based rate authority: (1) Whether the seller and its affiliates lack, or have adequately mitigated, market power in generation; (2) whether the seller and its affiliates lack, or have adequately mitigated, market power in transmission; (3) whether the seller or its affiliates can erect other barriers to entry; and (4) whether there is evidence involving the seller or its affiliates that relates to affiliate abuse or reciprocal dealing.
5. In 2006, the Commission issued a notice of proposed rulemaking, which led to the issuance in 2007 of Order No. 697, which clarified and codified the Commission's market-based rate policy and generally retained the four prong analyses.
6. With respect to the vertical market power analysis, in cases where a public utility or any of its affiliates owns, operates, or controls transmission facilities, the Commission requires that there be a Commission-approved Open Access Transmission Tariff (OATT) on file, or that the seller or its applicable affiliate has received waiver of the OATT requirement, before granting a seller market-based rate authorization.
7. If a seller is granted market-based rate authority, the authorization is conditioned on: (1) Compliance with affiliate restrictions governing transactions and conduct between power sales affiliates where one or more of those affiliates has captive customers;
8. In Order No. 697, the Commission created two categories of sellers.
9. In Order No. 697, the Commission further stated that through its ongoing oversight of market-based rate authorizations and market conditions, the Commission may take steps to address seller market power or modify rates. For example, based on its review of updated market power analyses, EQR filings, or notices of change in status, the Commission may institute a proceeding under section 206 of the FPA to revoke a seller's market-based rate authorization if it determines that the seller may have gained market power since its original market-based rate authorization. The Commission also may, based on its review of EQR filings or daily market price information, investigate a specific utility or anomalous market circumstance to determine whether there has been a violation of RTO/ISO market rules or Commission orders or tariffs, or any prohibited market manipulation, and take steps to remedy any violations.
10. After more than six years of experience with the implementation of Order No. 697, the Commission proposed a number of changes to the market-based rate program which, taken as a whole, it believed would simplify and streamline certain aspects of the market-based rate program and reduce the burden on industry and the Commission, while continuing to ensure that the standards for market-based rate sales of electric energy, capacity and ancillary services result in sales that are just and reasonable. The Commission also proposed a number of changes to improve transparency in the market-based rate program, some of which represent increases in information collected from market-based rate sellers.
11. The Commission received 23 comments in response to the NOPR. A list of commenters is attached as Appendix F.
12. In this Final Rule, we adopt in many respects the proposals contained in the NOPR with further modifications and clarifications and decline to adopt others. Our findings are summarized below.
13. First, with respect to the Commission's horizontal market power analysis, we are not, at this time, adopting the proposal to relieve market-based rate sellers in RTO/ISO markets of the obligation to submit indicative screens. However, we are confirming clarifications and adopting many of the other proposed modifications to the horizontal market power analysis. For example, we clarify that sellers may explain that their generation capacity in the relevant geographic market (including first-tier markets) is fully committed in lieu of submitting indicative screens as part of their horizontal market power analysis. We also clarify that, when the current Commission-accepted SIL values into the relevant market are zero for all four seasons and the seller's and its affiliates' generation capacity in the relevant market is fully committed, the seller does not need to submit indicative screens. In addition, we adopt the NOPR proposal regarding reporting of long-term firm purchases.
14. We adopt the proposal to define the default relevant geographic market for an IPP located in a generation-only balancing authority area as the balancing authority area(s) of each transmission provider to which the IPP's generation-only balancing authority area is directly interconnected. We explain that an IPP should study all of its uncommitted
15. We amend the indicative screen reporting format and require that the horizontal market power indicative screens and SIL Submittals 1 and 2 be filed in workable electronic spreadsheets. We find that solar photovoltaic and solar thermal facilities are energy limited. However, we determine that, due to their unique characteristics, solar photovoltaic facilities, unlike other energy-limited facilities, must use nameplate capacity and may not use historical five-year average capacity factors.
16. We adopt the proposal to require a market-based rate seller to report in its indicative screens and asset appendix all of its long-term firm purchases of capacity and/or energy that have an associated long-term firm transmission reservation regardless of whether the market-based rate seller has control over the generation capacity supplying the purchased power. We also adopt a modified formula for converting energy to capacity, and make corresponding changes to the change in status reporting requirements.
17. We confirm most of the clarifications proposed in the NOPR regarding the SIL studies and provide some additional clarifications in response to comments.
18. With respect to the Commission's vertical market power analysis, we adopt the proposal to eliminate the requirement that market-based rate sellers file quarterly land acquisition reports and provide information on sites for generation capacity development in market-based rate applications and triennial updated market power analyses. With respect to other change in status proposals, we clarify that the 100 MW threshold does
19. We also adopt a 100 MW change in status threshold for reporting new affiliations to align with the existing 100 MW threshold for reporting net increases in generation capacity.
20. We adopt changes to the asset appendix that sellers must submit with most market-based rate filings, and will also require that the asset appendix be submitted in an electronic format that can be searched, sorted, and otherwise accessed using electronic tools. In addition, based on comments received, we will add two additional worksheets to the asset appendix, one for end notes and another for long-term firm purchases. We provide some additional clarifications on the asset appendix as well.
21. We adopt the NOPR proposal to require a seller filing an initial application for market-based rate authority, an updated market power analysis, or a notice of change in status reporting new affiliations to include a corporate organizational chart. However, we clarify that the organizational chart need only to include the seller's affiliates as defined in section 35.36(a)(9) of the Commission's regulations rather than all upstream owners, “energy subsidiaries” and “energy affiliates.”
22. We adopt the NOPR proposal and clarify that granting waiver of 18 CFR part 101 under market-based rate authority does not waive the requirements under Part I of the FPA for hydropower licensees. In addition, we clarify how hydropower licensees that only make sales at market-based rates may satisfy the requirements in part 101 of the Commission's regulations (Uniform System of Accounts), and confirm that hydropower licensees that have Commission-approved cost-based rates are required to comply with the full requirements of the Uniform System of Accounts.
23. We also provide clarifications in the Final Rule with regard to simplifying assumptions, the criteria for determining seller category status, how to file a single corporate tariff, the regional reporting schedule, and the vertical affirmative statement obligation.
24. Section 35.37 of the Commission's regulations requires market-based rate sellers to submit market power analyses: (1) When seeking market-based rate authority; (2) every three years for Category 2 sellers; and (3) at any other time the Commission requests a seller to submit an analysis. A market power analysis must address a seller's potential to exercise horizontal and vertical market power. If an RTO/ISO seller
25. The Commission proposed to not require sellers in RTO/ISO markets to submit indicative screens as part of their horizontal market power analyses if they rely on Commission-approved monitoring and mitigation to prevent the exercise of market power. Under the proposal, RTO/ISO sellers instead would simply state that they are relying on such mitigation to address any potential market power they might have, and describe their generation and transmission assets and provide an asset appendix with a list of generation assets and entities with market-based rate authority (generation list) and a list of transmission assets and natural gas intrastate pipelines and gas storage facilities (transmission list). Under this proposal, all RTO/ISO sellers seeking market-based rate authority in an RTO/ISO market would make an initial filing, consistent with current practice, and those sellers required to file updated market power analyses every three years (
26. Some commenters support the Commission's proposal to allow market-based rate sellers in RTO/ISO markets with Commission-approved monitoring and mitigation to not file indicative screens when submitting initial applications requesting market-based rate authority and updated market power analyses.
27. The Commission received 15 comments on this issue from a wide variety of market participants. Indeed, this was one of the most widely commented upon aspects of the Commission's NOPR. The comments included those who fully support the Commission's proposal, those who favor only portions of it, those who seek clarification of it and those who oppose it. And among those who oppose it, there are various reasons for their opposition, which include legal, economic, and implementation issues. While the Commission considers further the issues that were raised in these comments, we are not prepared to adopt at this time the proposal in the NOPR and will continue with our current practice of requiring that sellers in RTO/ISO markets submit the indicative screens when submitting initial applications requesting market-based rate authority and updated market power analyses and relying on the Commission-approved market monitoring and mitigation. We will transfer the record on this aspect of the NOPR to Docket No. AD16–8–000 for possible consideration in the future as the Commission may deem appropriate.
28. Because we continue to value the information obtained through the indicative screens and are not prepared at this time to adopt the proposal, market-based rate sellers in RTO/ISO markets must continue to submit the indicative screens as part of their horizontal market power analysis unless the seller and its affiliates do not own or control generation capacity or all of their capacity is fully committed. We will continue to allow sellers to seek to obtain or retain market-based rate authority by relying on Commission-approved RTO/ISO monitoring and mitigation in the event that such sellers fail the indicative screens for the RTO/ISO markets.
29. The Commission has found that, if generation is committed to be sold on a long-term firm basis to one or more buyers and cannot be withheld by a seller, it is appropriate for a seller to deduct such capacity when performing the indicative screens.
30. The Commission proposed that sellers claiming that all of their relevant generation capacity
31. Additionally, the Commission stated that, consistent with the existing regulations, a change in status filing will be required when a long-term firm sales agreement expires if it results in a net increase of 100 MW or more.
32. Many commenters support the Commission's proposal.
33. NRG Companies also support the proposal and request that the Commission clarify that even if the seller and/or its affiliates have uncommitted capacity in one or more
34. NextEra states that there is no need to provide screens in balancing authority areas where all generation owned or controlled by sellers and their affiliates is fully committed to purchasers not affiliated with the seller and further requests that the Commission not require screens if there is uncommitted capacity in any first-tier market when 100 percent of the seller's generation capacity in the relevant market is fully committed.
35. EPSA requests clarification that the proposed term “fully committed” would also apply to circumstances where a seller retains the right to sell capacity to a second buyer, but only when the first buyer under the long-term contract waives the right to purchase. EPSA explains that if the buyer under a long-term contract has the right to call on the full output of the seller's generation, and the seller may only offer the capacity to a second buyer when the first buyer foregoes its purchase right, then that capacity should be considered fully committed and thus, excluded from the indicative screens.
36. Solomon/Arenchild state that the Commission's proposal that the exemption from the submittal of screens depends, in part, on whether the seller has uncommitted capacity in first-tier markets is inconsistent with its general approach in defining geographic markets and when screens are required. They recommend that the Commission's proposal be amended. In the NOPR, the Commission stated that “where all generation owned or controlled by a seller and its affiliates in the relevant balancing authority areas or markets
37. With regard to the information a seller must provide, NextEra seeks clarification on the phrase “firm sales for one year or longer.” NextEra requests that the Commission clarify that the term “firm” has the same meaning as in the Commission's EQR Data Dictionary, where it is defined as “a service or product that is not interruptible for economic reasons.”
38. NextEra does not oppose the Commission's proposal to require that sellers provide the expiration date of the contract in updated market power analyses, but NextEra states that it does not agree with requiring this information in initial market-based rate applications. NextEra states that, more often than not, at the time a seller files for market-based rate authority, the expiration date is unknown.
39. Consistent with the NOPR, the Commission clarifies here that when all of a seller's generation capacity is sold on a long-term firm basis to one or more buyers, the seller has no uncommitted capacity and in such cases will not be required to file the indicative screens. Sellers may explain that their generation capacity is fully committed in lieu of including indicative screens in their filings in order to satisfy the Commission's market-based rate requirements regarding horizontal market power in instances where all generation owned or controlled by a seller and its affiliates in the relevant balancing authority areas or markets, including first-tier balancing authority areas or markets, is fully committed. We clarify that to qualify as fully committed, a seller must commit the capacity to a non-affiliated buyer so that none of it is available to the seller or its affiliates for one year or longer. We also adopt the proposal that for those sellers claiming that all of their relevant capacity is fully committed they must include the following information: The amount of generation capacity that is fully committed, the names of the counterparties, the length of the long-term contract, the expiration date of the contract, and a representation that the contract is for firm sales for one year or longer. In order to qualify as fully committed, the commitment of the generation capacity cannot be limited during that 12-month consecutive period in any way, such as limited to certain seasons, market conditions, or any other limiting factor. As stated in the NOPR, a seller's generation would not qualify as fully committed if, for example, that generation is needed for the seller to meet its native load or provider of last resort obligations, or the power sales contract in question could allow the seller to reclaim, recall, or otherwise use the generation capacity and/or energy or regain rights to the generation under certain circumstances (such as transmission availability clauses). Additionally, a change in status filing will be required when a long-term firm sales agreement expires if it results in a net increase of 100 MW or more.
40. We do not adopt the suggestions by NRG Companies, NextEra, and Solomon/Arenchild regarding capacity in first-tier markets. We will not implement NRG Companies' and NextEra's proposals that the Commission not require sellers to submit indicative screens even if they have uncommitted capacity in one or more first-tier markets as long as all of the seller's capacity in the relevant market is fully committed. A seller may fail an indicative screen in a market where it does not have any uncommitted capacity due to its imports into the study area.
41. We do not adopt the suggestion from Solomon/Arenchild to only consider first-tier supply that has long-term firm transmission rights into the relevant market. First-tier generation capacity without long-term firm
42. We also decline to adopt EPSA's request that we clarify that a seller's generation capacity is fully committed where the seller retains the right to sell capacity to a second buyer.
43. With regard to NextEra's request that the Commission clarify that “firm” has the same meaning as in the Commission's EQR Data Dictionary, we clarify here that the term “firm” means a “service or product that is not interruptible for economic reasons,” as it is defined in the Commission's EQR Data Dictionary.
44. We believe that NextEra raises a valid point concerning unknown expiration dates. Therefore, we clarify here that if a contract expiration date is unknown at the time of the market-based rate filing, the seller must follow up with an informational filing, in the docket in which the seller was granted market-based rate authorization, to inform the Commission of the contract expiration date, within 30 days of the date becoming known. In response to EEI's argument that the expiration date is reported separately in EQR filings, we note many contracts reported in EQR filings do not include expiration dates. Further, there can be a time gap between when a seller receives market-based authority and when it submits its EQR. This time gap may be as large as 120 days, and would not meet the need for this information. Therefore, we will require expiration date information to show that generation capacity is fully committed.
45. In the NOPR, the Commission noted that “the horizontal market power analysis centers on and examines the balancing authority area where the seller's generation is physically located”
46. The Commission noted that Order No. 697 stated that a “balancing authority area means the collection of generation, transmission, and loads within the metered boundaries of a balancing authority, and the balancing authority maintains load/resource balance within this area.”
47. In the NOPR, the Commission stated that “[f]or purposes of market power analyses for market-based rate authority, we propose to define an IPP as a generation resource that has power production as its primary purpose, does not have any native load obligation, is not affiliated with any transmission owner located in the first-tier markets in which the IPP is competing and does not have an affiliate with a franchised service territory. This IPP could also have an OATT waiver on file with the Commission.”
48. To illustrate the NOPR proposal, the Commission explained that if an IPP is located in a generation-only balancing authority area that is embedded within a transmission provider's balancing authority area, and that balancing authority area is the only balancing authority area that the IPP's generation-only balancing authority area is directly interconnected with, then the IPP would provide indicative screens for that transmission provider's balancing authority area.
49. The Commission provided another example for an IPP located in a generation-only balancing authority area in a remote area such as the desert southwest. In that case, the IPP would have to provide indicative screens for the balancing authority area(s) of the transmission provider(s) to which its generation-only balancing authority area
50. For an IPP in a generation-only balancing authority area directly interconnected to a transmission provider at an energy trading hub, the Commission proposed that the IPP would provide indicative screens that study itself in the balancing authority area of each transmission provider that is directly interconnected at the trading hub. Thus, the balancing authority areas that are directly interconnected at the hub would each be relevant geographic markets for that IPP, and the IPP would provide indicative screens that study the IPP in each of those transmission providers' balancing authority areas. The Commission proposed that the IPP would provide indicative screens that assume that all of its uncommitted capacity may compete in each of the balancing authority areas that are directly interconnected at that trading hub, since all such uncommitted capacity could potentially be sold in each market to which there is a direct interconnection, even if the IPP has not sold into that market in the past. The IPP in this situation would not need to provide indicative screens that study itself in any markets that are first-tier to the various balancing authority areas that are directly interconnected at the trading hub.
51. Solomon/Arenchild agree in principal with the Commission's proposal to define relevant geographic market(s) for sellers located in generation-only balancing area as the balancing authority areas of each transmission provider to which the generation-only balancing authority area is directly interconnected. Solomon/Arenchild suggest that the Commission confirm that the proposal also applies to quasi-generation-only balancing authority areas, such as Ohio Valley Electric Corporation and Alcoa Power Generating, Inc.—Yadkin Division. According to Solomon/Arenchild, in these quasi-generation-only balancing authority areas, generation was built to serve load in a balancing authority area, but there is no longer any material load present in the balancing authority area.
52. However, Solomon/Arenchild voice concerns with the Commission's proposal to have an IPP provide screens that study the IPP in the balancing authority area of each transmission provider that is directly interconnected at the trading hub. Citing the example in the NOPR regarding IPPs interconnected to the Hassayampa switchyard, Solomon/Arenchild state that, as proposed, the solution is overly burdensome and likely to have unintended consequences.
53. Solomon/Arenchild also argue that the proposal does not clarify many of the steps that must be considered. They state that a seller has to determine if each of the analyses require a presumption that 100 percent of the output of each of the relevant merchant generators can be “imported” into each of the six or more balancing authority areas. They further state that the SIL studies done by the transmission owners in the region would have to be aligned with the analyses and they question whether that means that each of the balancing authority areas would be required to conduct two SIL studies—one that assumes each of the potentially relevant generators reside “within” their balancing authority areas and one that does not. Solomon/Arenchild also question whether Harquahala and Arlington Valley should be singled out from their other counterparts who are also interconnected at Hassayampa, merely because they reside in a generation-only balancing authority area.
54. Solomon/Arenchild state that the proposal to conduct indicative screens for multiple interconnected balancing authority areas appears to merely create multiple opportunities for the generator in a generation-only balancing authority area to fail an indicative screen. Solomon/Arenchild further state that in proposing that each generator consider multiple relevant balancing authority areas, it seems that the Commission is acknowledging the highly interconnected nature of the region (a key reason for the existence of a “hub”), while still rejecting the proposition that a “hub” itself can be a relevant market. Solomon/Arenchild explain that it is worth noting that in the Western Interconnection (unlike in the Eastern Interconnection), load flow models such as those underlying the SIL analyses are based not on individual balancing authority areas, but on “areas” that more closely approximate real world conditions.
55. Solomon/Arenchild state that the proposal could have significant market-distortive effects. Solomon/Arenchild postulate that if a generator fails an indicative screen in the Salt River Project balancing authority area, but not in the Arizona Public Service balancing authority area, the Salt River Project balancing authority area may lose opportunities to purchase at market-based rates, and generators may lose opportunities to sell at market-based rates. Solomon/Arenchild contend that this would not occur if somewhat broader markets are considered. Solomon/Arenchild conclude that, in the absence of creating broader markets for generation-only balancing authority areas like those at Hassayampa, the Commission should not change its current practice. That is, sellers in generation-only balancing authority areas should use as the default relevant market, the directly interconnected balancing authority areas and that the scope of such definitions be evaluated on a case-by-case basis.
56. Lastly, Solomon/Arenchild request that the Commission clarify that, to the extent that a seller fails the indicative screens in the balancing authority area(s) to which it is directly interconnected, sales at the “hubs” be treated as “at the metered boundary” of a seller's mitigated balancing authority
57. Romkaew Broehm and Gerald A. Taylor (Broehm/Taylor) agree with the Commission's logic in proposing to define relevant markets as the balancing authority areas that are directly interconnected to the generation only-balancing authority area. However, Broehm/Taylor encourage the Commission to look beyond its default market rule when defining a proper relevant geographic market for a market power analysis for all sellers. Broehm/Taylor question whether a seller's home balancing authority area and its first-tier balancing authority area would be adequate for determining relevant default markets. According to Broehm/Taylor, during the 2000–2001 Western power crisis experience, suppliers with generation more than two wheels away could easily reach the California buyers and became pivotal sellers, simply by having firm transmission rights at the key interfaces.
58. EPSA generally supports the proposal, but suggests consistent treatment in the Commission's evaluation of nested balancing authority areas. It requests that the Commission clarify that it will implement the proposal in such a manner to ensure that as long as there is network deliverability from the nested balancing authority areas through the interconnected balancing authority areas and to the first-tier balancing authority areas, those first-tier balancing authority areas should be included in the indicative screens of sellers in the generation-only balancing authority areas. According to EPSA, this approach would more accurately reflect the geographic area in which the energy from the nested balancing authority area is available and with which it can compete. They also state that this approach would be consistent with the analysis for an IPP's balancing authority area that is connected to a trading hub.
59. NRG Companies request that the Commission clarify that if a seller in a generation-only balancing authority area fails the indicative market power screens and surrenders or loses market-based rate authorization to sell in one or more of the markets connected to the trading hub, the seller will still be allowed to make market-based rate sales at the trading hub, as long as it retains market-based rate authorization in at least one of the balancing authority areas interconnected to the trading hub. NRG Companies state that such clarification is consistent with the Commission's holding in Order No. 697 that a seller that has lost market-based rate authorization and is making sales subject to cost-based mitigation may continue to “make market-based rate sales at the metered boundary between a mitigated balancing authority area and a balancing authority in which the seller has market-based rate authority.”
60. EEI encourages the Commission to clarify that IPPs connected to a hub would need to perform the market power analyses only for the home market of each transmission provider connected to the hub, not the transmission provider's first-tier adjacent markets, and that the IPPs could conduct a single analysis, not separate ones for each provider's market. EEI also requests the Commission consider whether a similar approach could be used for entities that are not IPPs and for entities that have a
61. We adopt the NOPR proposal to define the default relevant geographic market(s) for an IPP located in a generation-only balancing authority area as the balancing authority areas of each transmission provider to which the IPP's generation-only balancing authority area is directly interconnected. For purposes of this provision, we define an eligible IPP as a generation resource that has power production as its primary purpose, does not have any native load obligation, is not affiliated with any transmission owner located in the target or first-tier markets in which the IPP is competing and does not have an affiliate with a franchised service territory.
62. We also adopt the proposal for such an IPP to study all of its uncommitted generation capacity from the generation-only balancing authority area in the balancing authority area(s) of each transmission provider to which it is directly interconnected. We clarify that we do not consider other generation-only balancing authority areas to which an IPP may be interconnected to be balancing authority areas of transmission providers. If an IPP is located in a generation-only balancing authority area that is embedded within a transmission provider's balancing authority area, and that balancing authority area is the only balancing authority that the IPP's generation-only balancing authority area is directly interconnected with, then the IPP only needs to study that transmission provider's balancing authority area. An IPP in this situation would not need to study the transmission provider's first-tier markets. An example of this situation is NaturEner Power Watch, LLC (NaturEner), which has a generation-only balancing authority area that is located within the NorthWestern Energy balancing authority area. NaturEner would provide indicative screens that examine all of its uncommitted capacity in the NorthWestern Energy balancing authority area. NaturEner would not need to study itself in any other balancing authority areas unless its generation-only balancing authority area is directly interconnected to other balancing authority areas.
63. Similarly, if the IPP is located in a generation-only balancing authority area and is not embedded within a single transmission provider's balancing authority area, the IPP would need to provide indicative screens for the balancing authority area(s) of the transmission provider(s) to which its generation-only balancing authority area is directly interconnected. For example, if it were the case that the generation-only balancing authority areas of the Gila River Power Company LLC and
64. Finally, we adopt the proposal to require an IPP in a generation-only balancing authority area that is directly interconnected to a transmission provider at a trading hub to provide indicative screens that study itself in the balancing authority area of each transmission provider that is directly interconnected at the trading hub
65. We appreciate the concerns of Solomon/Arenchild that this requirement is overly burdensome, but think the proposal achieves an appropriate balance. Historically, these sellers frequently failed the indicative screens for their home markets since they often own or control the majority of installed capacity, but have no associated load from which to reduce their market shares. The Commission's approach in this Final Rule likely will obviate the need to submit a DPT to rebut the presumption of market power that results from failure of the indicative screens, which typically is more burdensome and expensive than preparing indicative screens for multiple markets. In addition, the obligation to submit screens for all balancing authority areas directly interconnected to a trading hub would apply to a limited number of market-based rate sellers and these sellers could rely on previously-accepted studies to complete their indicative screen analyses. We believe that this approach helps sellers by providing explicit guidance on the definition of the default market for their specific situation.
66. In response to Solomon/Arenchild's concern that a transmission provider would need to conduct two SIL studies, we clarify that SIL studies should consider the IPP's generation capacity as first-tier generation to each balancing authority area studied. There would be no need to conduct a second SIL study that assumes that the IPP is located within a transmission provider's balancing authority area. However, if an IPP has a long-term firm transmission reservation into a particular transmission provider's balancing authority area for all or a portion of its output, then the SIL study would have to reflect the fact that the IPP's generation capacity associated with the transmission reservation would be a firm import to that specific transmission provider. However, multiple SIL studies would not need to be performed; in this case, the IPP's generation capacity associated with the transmission reservation would be modeled as a firm import to the relevant transmission provider's balancing authority area.
67. With regard to requests that the Commission clarify that, to the extent a seller fails the indicative screen in the balancing authority area(s) it is directly interconnected to, sales at hubs are treated as “at the metered boundary”
68. We find Broehm/Taylor's request that the Commission require all market-based rate sellers to report their historical sales and transmission reservation data and to use such data to define the relevant geographic market, including markets beyond the first-tier, to be outside the scope of this rulemaking. This aspect of the NOPR proposal is limited to the relevant geographic market for IPPs in generation-only balancing authority areas.
69. We interpret EPSA's reference to nested balancing authority areas to mean generation-only balancing authority areas that are embedded within a transmission provider's balancing authority area. With regard to EPSA's request to require IPPs in generation-only balancing authority areas to provide indicative screens for first-tier balancing authority areas when there is network deliverability from the embedded balancing authority area through the interconnected balancing authority area to the first-tier balancing authority areas, we reiterate that an IPP in this situation would not need to study the transmission provider's first-tier markets, even if there is available transmission capacity. As noted above, if an IPP is located in a generation-only balancing authority area that is embedded within a transmission provider's balancing authority area, and that balancing authority area is the only balancing authority that the IPP's generation-only balancing authority area is directly interconnected with, then the IPP only needs to study that transmission provider's balancing authority area.
70. We clarify, in response to the request from Solomon/Arenchild, that the Commission's proposal also is meant to apply to quasi-generation-only balancing authority areas such as Ohio Valley Electric Corporation, Alcoa Power Generating, Inc.-Yadkin Division and Electric Energy Inc. We interpret EEI's request for the Commission to consider applying the proposal to entities that are not IPPs and entities that have a
71. In response to EEI's request, we clarify that an IPP in a generation-only balancing authority area that is directly interconnected to a hub would need to perform the market power analyses only for the home market of each transmission provider connected to the hub, not the transmission provider's first-tier adjacent markets. However, we decline to grant EEI's request to allow IPPs to provide a single analysis for all balancing authority areas interconnected to the trading hub and Solomon/Arenchild's similar request for broader markets to be considered. Preparing a single analysis for all balancing authority areas interconnected to a trading hub would require that these areas be combined into a single, consolidated market. We believe that such a request is beyond the scope of this proceeding.
72. When submitting indicative screens as part of a horizontal market power analysis, sellers are required to use the standard screen formats adopted by the Commission in Order Nos. 697 and 697–A, which are provided in appendix A to subpart H of part 35.
73. Thus, the Commission proposed to amend the indicative screen reporting formats in appendix A of subpart H of part 35. The Commission proposed that appendix A include new rows for SIL Values, Long-Term Firm Purchases (from outside the study area), and Remote Capacity (from outside the study area) in both the pivotal supplier and market share screen reporting formats. The Commission stated that including a row in the indicative screens for SIL Values will help reinforce the relationship between affiliated and non-affiliated generation capacity imports and the SIL value. The Commission also proposed to modify the descriptive text of the rows in the indicative screens for Installed Capacity, Long-Term Firm Purchases, Long-Term Firm Sales, and Uncommitted Capacity Imports.
74. The Commission proposed to revise the regulations at 18 CFR 35.37(c)(4) to require sellers to file the indicative screens in a workable electronic spreadsheet format.
75. Next, the Commission proposed to add a paragraph to the end of section 35.37(c), making it paragraph (5), to codify the Commission's requirement that sellers submitting SIL studies adhere to the direction and required format for Submittals 1 and 2 found on the Commission's Web site
76. APPA/NRECA and Golden Spread state that they support requiring sellers to file the indicative screens in a workable, electronic spreadsheet format.
77. EEI requests that the Commission specify that it simply wants market-based rate sellers to file the information electronically using standard formats such as Adobe, Excel, or Word. EEI adds that if the Commission has something more complex in mind, it should explain the need for a more complex approach and should work with the regulated community in developing the new formats that will be posted on the FERC Web site, and in preparing other such guidance, information, and requirements related to the market-based rate program, to ensure that all are reasonable, clear, accurate, easy to use, and most cost-effective.
78. Solomon/Arenchild state that the proposal to require sellers to provide a summary spreadsheet of the SIL components used to calculate the SIL values in the electronic spreadsheet format provided on the Commission's Web site is potentially helpful but seek clarification as to whether only Line 10 of Submittal 1 is required to be filed publicly.
79. El Paso commends the proposal to add new rows to clearly identify Long-Term Firm Purchases and Remote Capacity from outside the study area. It states that these reporting modifications will not only provide clarity and transparency for the Commission's review, but will also correctly recognize traditional entities, like El Paso, which have invested in remote generation capacity to serve their native load customers.
80. We adopt the NOPR proposal to amend the indicative screen reporting formats in appendix A of subpart H of part 35 to include new rows for SIL Values, Long-Term Firm Purchases (from outside the study area), and Remote Capacity (from outside the study area) in both the pivotal supplier and market share screen reporting formats. We also adopt the NOPR proposal to revise the regulations at 18 CFR 35.37, as proposed in the NOPR, to require sellers to file the indicative screens in a workable electronic spreadsheet format and to codify the requirement that sellers submitting SIL studies adhere to the direction and required formats for SIL Submittals 1 and 2 found on the Commission's Web site and submit their information in workable electronic spreadsheets. The adopted indicative screen reporting formats for appendix A to subpart H is provided in appendix A of this Final Rule.
81. In response to EEI's request that the Commission specify that it simply wants market-based rate sellers to file the information electronically using standard formats such as Adobe, Excel, or Word, we clarify that Excel or another spreadsheet format will be acceptable but an Adobe PDF file will not be acceptable. As the Commission stated in the NOPR, a “workable electronic spreadsheet” refers to a machine readable file with intact, working formulas as opposed to a scanned document such as an Adobe PDF file. If a seller chooses to create its own workable electronic spreadsheet, the file it submits must have the same format as the sample spreadsheet on the Commission Web site.
82. In response to Solomon/Arenchild's request that the Commission clarify whether only row 10 of Submittal 1 is required to be filed publicly, we clarify that the Commission expects that all of Submittal 1, not just row 10, will be filed publicly. Submittal 1 provides summary numeric data showing how the SIL values were calculated for a given relevant geographic market and some of this data already is publicly available. While we discourage submitting any portion of Submittal 1 as privileged, to the extent a filer intends to request privileged treatment for any portion of Submittal 1 or any other portion of its filing, such filing must comply with 18 CFR 388.112, including the justification for privileged treatment,
83. We believe there is no need to expand the indicative screens as proposed by El Paso because the scenario El Paso describes can be addressed within the screens, as amended by this Final Rule. However, we clarify that a seller with remote generation serving the seller's home balancing authority area (rather than serving the balancing authority area where the generation is physically located) should account for that generation capacity in row C “Long-Term Firm Sales (in and outside the study area)” if that generation is used to serve load in the seller's home study area by virtue of dynamic scheduling and/or long-term firm transmission reservations. If the seller's remote generation is not committed to serving load in the seller's home balancing authority area, then that generation should be studied as uncommitted generation in the first-tier balancing authority area where it is located.
84. In the NOPR, the Commission noted that it permits sellers to make simplifying assumptions, where appropriate, and to submit streamlined horizontal market power analyses. The Commission noted that Order No. 697 provided that “ `a seller, where appropriate, can make simplifying assumptions, such as performing the indicative screens assuming no import capacity or treating the host balancing authority area utility as the only other competitor.' ”
85. EEI, APPA/NRECA, and Golden Spread support the Commission's proposed clarifications regarding sellers performing simplified indicative screens assuming no competing import capacity.
86. We confirm the Commission's clarification in the NOPR regarding competing import capacity. Specifically, “assuming no import capacity” means that a seller may assume “no
87. In the NOPR, the Commission noted that it allows sellers submitting indicative screens to rate their generation facilities using either nameplate or seasonal capacity ratings.
88. In the NOPR, the Commission proposed to identify solar technologies as energy-limited generation resources and to allow such sellers to use either nameplate capacity or five-year historical average capacity ratings to determine the capacity rating for their solar technology generation resources. The Commission stated that similar to other energy-limited generation resources, sellers using the five-year average capacity factor must include sensitivity tests using the lowest and highest capacity factors for the previous five years. The Commission proposed that sellers with energy-limited generation facilities (including solar technologies) that do not have five years of historical data may use nameplate capacity, or the EIA-derived, regional capacity factor for the previous five years appropriate to their specific technology as defined in the EIA publication
89. In addition, the Commission sought industry input in identifying additional technologies that are energy-limited generation resources, and what capacity factors should be used to rate them. The Commission acknowledged that solar photovoltaic facilities will effectively function with zero capacity during nighttime hours or during heavy overcast conditions, as the sun does not provide much, if any, solar energy from solar photovoltaic facilities during such conditions. Thus, the Commission sought comment on whether these operating characteristics warrant establishing a different method of setting capacity factors for solar generation as compared to other generation technologies.
90. Also in the NOPR, the Commission proposed to clarify that, within each filing, a seller must use the same capacity rating methodology for similar generation assets. The Commission stated that if a seller chooses in a particular filing to use seasonal ratings for one of its thermal units, it must use seasonal ratings for all of its thermal units in that filing. Likewise, if the seller chooses to use an alternative rating methodology, such as the five-year average for any energy-limited generation resource, it must use the five-year average for all energy-limited generation resources in that filing for which five years of historical data is available; otherwise it must use the EIA-derived capacity factors for those resources for which the seller does not have five years of data. The Commission stated that the seller must specify in the filing's transmittal letter or accompanying testimony, and in the generation asset appendix, which rating methodologies it is using. The seller must use the specified rating methodologies consistently throughout its entire filing, including in its transmittal letter, asset appendix, and indicative screens. The Commission noted that this proposal does not preclude the seller from using a different capacity rating methodology for each type of generation facility (thermal or energy limited) in subsequent filings (
91. Many commenters support the Commission's proposal to identify solar technologies as energy-limited generation resources.
92. E.ON agrees with the Commission's proposal to allow a seller that owns or controls solar technology generating resources to use either nameplate capacity or five-year historical average capacity ratings to determine capacity rating, and to use EIA-derived, regional capacity factor estimates if the seller does not have five-year historical capacity data. EEI asks the Commission to consider allowing a given seller, with or without five years of historical data, to use an alternative to the EIA regional capacity ratings if the seller can demonstrate that the alternative is more accurate as to one or more of the specific solar-generation facilities at issue in the filing, while allowing use of actual or historical data for other facilities in the same market.
93. Many commenters sought clarification on the Commission's proposals regarding use of capacity factors for energy-limited resources. E.ON seeks clarification that if the seller relies on EIA-derived capacity factors for a solar resource, it is not precluded from using actual historical five-year data to establish capacity factors for its other energy-limited resources.
94. Broehm/Taylor state that the Commission should require use of the average historical capacity factor of existing energy limited resources with the same technologies within the same region instead of the EIA-derived, regional capacity factor estimates proposed by the Commission. Broehm/Taylor state that the EIA-derived,
95. Further, Broehm/Taylor state that they “seek Commission clarification on whether the availability factors
96. In response to the Commission's request for industry input in identifying additional technologies that are energy-limited generation resources, SoCal Edison identifies the following: Hydro, wind, solar, biomass, and geothermal resources. It further states that it believes this list can and should be expanded as appropriate.
97. NextEra states that it does not support requiring the same rating methodology for all resources of the same technology. To better reflect a seller's market power, NextEra urges the Commission to provide sellers the option in submitting indicative screens to reflect, if known, the historical capability for resources of the same technology and, if unknown, to submit EIA regional data for those specific resources.
98. FirstEnergy states that the Commission properly recognized in the NOPR that solar photovoltaic facilities will effectively function with zero capacity during nighttime hours or during heavy overcast conditions.
99. However, SoCal Edison contends that the screens are not designed for a particular hour or the peak hour for many types of generation, all hours should be considered when calculating the capacity rating.
100. We adopt the NOPR proposals with certain modifications and clarifications. Specifically, we will allow sellers with energy-limited generation facilities to use capacity factors to de-rate those facilities in their market power analysis, with certain clarifications discussed below. We will also identify solar thermal technologies as energy-limited technologies, but require the use of nameplate capacity ratings for solar photovoltaic units.
101. We accept the NOPR proposal to identify solar photovoltaic and solar thermal facilities as energy-limited generation resources. However, as discussed below we will continue to require a seller to use nameplate ratings for its solar photovoltaic facilities. We will allow a seller to treat solar thermal facilities in the same manner as other energy-limited resources. If a seller chooses to use a rating based on a five-year average capacity factor for solar thermal facilities in their filings, they must follow all of the requirements discussed in this Final Rule regarding the use of capacity factors. Further, a seller must use the same rating methodology for non-affiliated solar thermal facilities, as it does for its own solar thermal facilities.
102. For solar photovoltaic facilities we adopt NextEra's proposal and
103. We will continue to allow a seller with energy-limited generation facilities other than solar photovoltaic to use capacity factors to de-rate those facilities in its market power analysis. For purposes of this discussion we are excluding solar photovoltaic from using capacity factors; as discussed above, solar photovoltaic will be rated on nameplate rating. We clarify that for energy-limited facilities, a seller may use either the nameplate capacity or a rating based on a five-year average capacity factor. When a seller chooses to use a certain rating methodology for an energy-limited resource, it must consistently use that rating methodology for that specific type of energy-limited resource in its market-power studies (
104. A seller must use the same capacity rating method for non-affiliated energy-limited facilities that it uses to rate the capacity of its own energy-limited facilities when they are preparing their market-power analyses. Thus, a seller that uses nameplate ratings for its own energy-limited facilities should use nameplate ratings for all other energy-limited facilities included in their horizontal market power studies. Likewise, a seller that de-rate its own energy-limited facilities using five-year average capacity factors should de-rate non-affiliated energy-limited facilities using EIA regional average capacity factors in its screens and DPTs. Consistent with Order No. 697, we will continue to require a seller that de-rates its energy-limited facilities to include sensitivity tests using the lowest capacity factor in the previous five years, and the highest capacity factor in the previous five years.
105. In the NOPR the Commission stated that a seller would be allowed to use different capacity rating methodologies in subsequent filings. However, we find here that a seller must use the same rating methodology in subsequent filings until the next updated triennial market power analysis. Thus, a seller would not be allowed to change its rating methodologies until its next updated triennial market power analysis (
106. We adopt the NOPR proposal to require that a seller submit its calculations of the regional capacity factor as well as copies of the appropriate tables of regional generation capacity ratings from EIA's
107. In the NOPR, the Commission sought industry input in identifying additional technologies that are energy-limited generation resources, and what capacity factors should be used to rate them. As discussed above, we adopt the proposal to identify solar thermal technologies as energy limited. However, given that the Commission only received one comment identifying additional technologies (other than solar) and the Commission did not receive any comments regarding what capacity factors should be used to rate additional technologies, we will not specifically identify any additional technologies as energy limited at this time.
108. In Order No. 697, the Commission stated that a seller's uncommitted capacity, as calculated in the indicative screens, is determined by adding the total nameplate or seasonal
109. In the NOPR, the Commission noted that the limited reporting of long-term firm purchases may create errors or misleading results in the indicative screens submitted by some sellers including incorrectly-sized markets and negative market shares for franchised public utilities and inconsistencies between the SIL values reported in the screens and the SIL values calculated for the relevant market or balancing authority area. The Commission noted instances where neither the seller nor the purchaser under a long-term firm power sale is attributed with the generation capacity that is used to make the sale because the seller deducted the capacity committed under the long-term firm power sale from its uncommitted capacity while the purchaser followed existing Commission policy and, because it did not “control” this capacity, did not include it as part of its uncommitted capacity.
110. The Commission proposed in the NOPR to modify the policy with respect to the reporting of long-term firm purchases in the indicative screens. Specifically, the Commission proposed to require applicants
Where energy (MWh) is the total amount of energy purchased under the power purchase agreement over the calendar year; 8,760 is the total hours of a calendar year (use 8,784 in a leap year); capacity factor is actual capacity factor achieved by the unit(s) supplying the energy during the calendar year and is a measure of a generating unit's actual output over a specified period of time compared to its potential or maximum output over that same period. For example, if 700,000 MWh is the amount of firm energy purchased under a power purchase agreement during a calendar year, and the capacity factor of the generator supplying the energy is 0.8 or 80 percent, then the 700,000 MWh of energy would be converted into approximate 100 MW of capacity. That is: (700,000 MWh/8,760)/0.8 = 100 MW. NOPR, FERC Stats. & Regs. ¶ 32,702 at P 79 n.98.
111. The Commission stated that the intent of the proposed reform is to have an applicant report all long-term firm purchases that it makes where the selling entity has a legal obligation to provide the purchaser with an energy supply that cannot be interrupted for economic reasons or at the seller's discretion. If the purchaser has contractual rights to receive the output of a long-term firm energy purchase, the Commission proposed that the amount of the capacity supplying that purchase must be reported in the purchaser's screens.
112. In the NOPR, the Commission stated that the proposal to require applicants to report all of their long-term firm purchases of capacity and/or energy in their indicative screens and asset appendices is supported based on several considerations. First, it will size the market correctly and therefore improve the accuracy of the indicative screens, especially for franchised public utilities, whose indicative screens are used by the non-transmission owning sellers to prepare their own indicative screens. Currently, applicants often do not report some or all of their long-term firm purchases because they do not control these resources. Including all long-term firm purchases in the indicative screens will properly size the market and eliminate the unrealistic results (
113. Second, the Commission stated that this proposed change will establish consistent treatment of long-term firm sales and long-term firm purchases in the indicative screens. The Commission noted that applicants typically deduct long-term firm sales without making a determination as to whether those sales confer operational control to the purchaser. The Commission explained that, in Order No. 697, it did not require that sellers make such a determination before deducting the capacity supporting long-term firm sales: “Uncommitted capacity is determined
114. In the NOPR, the Commission explained that it is only on the “buy” side of long-term firm purchases that the Commission has considered the issue of control in reporting capacity in the screens.
115. Third, requiring the reporting of all long-term firm power purchases also will ensure consistent treatment of owned or installed capacity and long-term firm purchases in the indicative screens. The Commission stated that the horizontal market power analysis implicitly assumes that applicants control all of their owned or installed capacity listed in their indicative screens but this is not necessarily the case.
116. Further, the Commission stated in the NOPR that for those applicants incorrectly reporting long-term firm power purchases in the wrong row of the indicative screens,
117. Commenters mostly disagree with the proposal, either supporting the Commission's existing “control test” or expressing concerns that the Commission's proposal does not actually make the reporting more accurate.
118. E.ON and FirstEnergy agree with the Commission's proposal.
119. EEI urges the Commission to engage in further dialogue, noting that some EEI members have concerns, and some agree with at least some elements of the proposal. EEI states that some members were concerned that they would lose flexibility to reflect actual ownership and control of assets in indicative screens and asset appendices, and whether they would need to report the long-term contracts in the asset appendix.
120. Avista/Puget state that the Commission's proposed solution goes too far and that the Commission instead should retain its current treatment of purchased capacity and/or energy based on the concept of operational control established in Order No. 697, with certain modifications to ensure that the capacity does not disappear from reports of the market.
121. TAPS expresses concerns that the proposed change may well result in inaccurate reporting and mask the market power of large sellers where they retain control over the resource(s).
122. Indicated Utilities state that if the Commission adopts this rule, it should exempt from this requirement the capacity and/or energy associated with power purchase agreements from inherently intermittent qualifying small power production facilities entered into under 18 CFR part 292, subpart C, namely solar and wind qualifying facilities.
123. EPSA questions the utility of this proposal and seeks clarification of how this requirement would differ from the reporting required in EQRs. EPSA states that it appears that the information required to be reported by this proposal would duplicate the information provided by sellers contained in the EQRs, which are required to be filed under current Commission regulations. EPSA suggests that if the Commission is seeking this information, then the Commission should not adopt the proposed revision but just refer to the EQR data.
124. EPSA requests clarification that in evaluating long-term contracts for the indicative screens, sellers are still permitted to make conservative assumptions in their initial application and triennial updated market power analyses.
125. Indicated Utilities state that the Commission should clarify that this proposed change—whether for intermittent qualifying small power production facilities power purchase agreements or other power purchase agreements—applies only to the indicative screens and asset appendices, and does not apply to any DPT analyses submitted to rebut a presumption of market power brought about by failure of one or both of the screens. Indicated Utilities contend that it would be consistent with the Commission's post-Order No. 697 approach for the proposed policy to apply only to the indicative screens while maintaining the current “control-based” approach to DPT analyses. Indicated Utilities state that the indicative screens are designed to be screens, while the DPT, on the other hand, is more granular and a more accurate means of assessing horizontal market power.
126. SoCal Edison states that it does not generally object to the Commission collecting data on all long-term firm purchases through the asset appendix, but SoCal Edison asks the Commission to clarify that inclusion of a long-term firm purchase in an asset appendix does not constitute a concession that a purchase should appear in a market power screen analysis. SoCal Edison states that a seller should be permitted to rebut the presumption that any particular long-term firm purchase should be counted if the applicant is seeking to exclude the long-term firm purchase from a market power analysis. SoCal Edison further submits that if the applicant has no obligation to submit such screens, it need not rebut the presumption, but reserves the right to do so if ever requested to submit a screen analysis.
127. Several commenters request clarification of various aspects of the proposal. SoCal Edison requests that the Commission explain how the buyer is to obtain the capacity factor information, which may not exist, in order to convert energy-only transactions.
128. SoCal Edison states that although the NOPR proposes reporting of long-term firm purchases where the purchase has an associated long-term firm transmission reservation, the concept of a long-term firm transmission reservation does not exist within the California Independent System Operator Corporation (CAISO) market. Therefore, SoCal Edison states that the Commission should clarify for CAISO and any other region that has eliminated long-term firm reservations, how this standard should be applied.
129. Solomon/Arenchild ask for clarification on the treatment of jointly-owned facilities. They state that although the NOPR proposal abandons the need to determine the party that controls capacity under long-term contracts, the need for letter of concurrence seems to remain. They state that because the letter of concurrence previously was tied to the issue of the degree to which each party controls a facility, and control is no longer a factor, it is difficult to understand when letters of concurrence are appropriate.
130. We adopt the proposal to report long-term firm purchases in the indicative screens, with modification and clarifications as discussed below. We believe that requiring applicants under the market-based rate program to report all of their long-term firm purchases of energy and/or capacity, regardless of whether the applicant has operational control of the generation capacity supplying the purchased power, will improve the accuracy of the indicative screens.
131. Some commenters contend that the proposed change will not make the screens more accurate because it may understate the market power of entities selling long-term firm capacity and/or energy.
132. We are not persuaded by SoCal Edison's arguments disputing the existence of a “disappearing capacity” problem under the current policy. For example, SoCal Edison claims that even if an applicant does not attribute a long-term firm energy and/or capacity purchase to itself, the associated capacity will show up in the screens as non-affiliate capacity.
133. Avista/Puget proposes to fix the “disappearing capacity” problem by allowing sellers of long-term firm energy and/or capacity to only deduct such capacity in their indicative screens if they relinquish operational control over the capacity.
134. Moreover, applying the control test to the seller would largely negate the Commission's policy with respect to fully committed generation capacity, as described elsewhere in this Final Rule. Under this policy, in order to satisfy the Commission's market-based rate requirements regarding horizontal market power, sellers may explain that their generation capacity is fully committed in lieu of including indicative screens. Today, new generating units, many of which are wind and solar units, often represent that they are fully committed under long-term power purchase agreements and deduct all of their capacity in the indicative screens or do not provide screens at all. Under Avista/Puget's proposal to assign the control test to the seller of long-term firm capacity, such sellers would only be able to deduct their capacity if they demonstrated that the purchaser had operational control of the generating unit. These sellers either would have to demonstrate that they no longer have control of their generation capacity or, if that was not the case, submit indicative screens. What currently are routine filings requesting market-based rate authority for new fully committed generators could in some cases become complicated.
135. We reject Indicated Utilities' proposal to exempt applicants from reporting long-term firm purchases backed by intermittent or energy-limited qualifying facility resources.
136. Regarding SoCal Edison's argument concerning the distinctions between owning and purchasing generation, we reiterate that, for the purpose of horizontal market power analyses, long-term firm power purchase agreements convey rights to generation capacity that are similar (though not identical) to ownership because they provide the purchaser with a resource that the purchaser can rely on to serve its load. The common definition of a “firm” purchase is a service or product that is not interruptible for economic reasons.
137. With regard to EPSA's contention that reporting of long-term firm power purchase agreements in the indicative screens is duplicative of reporting such transactions in EQRs, the indicative screens and EQRs perform separate functions. The former is an
138. With respect to questions raised regarding the treatment of long-term firm purchases in DPT analyses, we clarify that applicants must attribute long-term firm power purchase agreements to the purchaser when the power purchase agreement has an associated long-term transmission reservation. An applicant that includes long-term firm power purchase agreements in its screens should include the same power purchase agreements in any DPT analyses filed to rebut the presumption of market power resulting from a screen failure. The fact that DPTs are more detailed, granular market power analyses does not negate the need to attribute long-term firm purchases to purchasers. We recognize that this may lead to inconsistencies in the treatment of long-term purchases between DPT analyses submitted in section 203 filings and those submitted in section 205 filings, but there already are several differences between DPT analyses filed in section 203 and 205 proceedings (
139. We confirm that long-term firm power purchase agreements that are reported in the indicative screens also should be reported in the asset appendix, appendix B, as proposed in the NOPR. However, we agree with commenters that the existing appendix B is not designed to report long-term firm purchases, particularly those that are not backed by specific generating units. Therefore, the Commission is creating a separate sheet in appendix B specifically for applicants to report all long-term firm purchases included in their indicative screens. This new sheet to the asset appendix is described in the discussion of the asset appendix below.
140. With respect to the process for converting long-term firm energy-only contracts to MW equivalents, we provide clarification and have decided to modify the approach set forth in the NOPR. First, with respect to a question raised by Solomon/Arenchild, we clarify that such conversions are needed only if a capacity amount (MW) is not specified in the contract. Long-term firm power purchase agreements that have a capacity amount specified need not be converted, regardless of whether the contract includes a separate capacity payment.
141. Upon consideration of the comments, we will modify the energy-to-capacity conversion formula proposed in the NOPR. We find there is some merit to SoCal Edison's argument that firm energy contracts cannot necessarily be linked to specific generating units (although the energy comes from a set of generating units that ultimately can be identified). Thus, we are adopting an alternative conversion approach that is responsive to these concerns; this approach is conceptually similar to the approach proposed in the NOPR but uses a different factor—load rather than generation—to convert energy into a capacity value.
142. In place of the conversion formula set forth in the NOPR, applicants should use their actual load factor
143. Long-term firm energy contracts serve the purchaser's load for a term of at least one year, so the purchaser's load factor is a reasonable basis to establish the capacity value of a long-term firm energy contract. This approach also avoids the need to calculate a capacity factor and link the purchase back to a generating unit or set of generating units. Applicants have ready access to their load data so performing this conversion should not be problematic or burdensome.
144. Applicants would continue to have the option of proposing a different method of attributing capacity based on
145. We provide several clarifications to the reporting of long-term firm power purchase agreements. First, we clarify that an applicant should report a long-term firm purchase of capacity and/or energy that has an associated long-term firm transmission reservation for either point-to-point or network transmission service. In addition, we clarify that this requirement applies regardless of whether the long-term firm transmission reservation is held by the purchaser or seller of the capacity/energy. In response to SoCal Edison's query, we clarify that the requirement that applicants only include long-term firm power purchase agreements in their indicative screens if they have an associated long-term transmission reservation will not apply within an RTO/ISO market if that RTO/ISO does not have long-term firm transmission reservations or their equivalent. Instead, applicants in such RTO/ISO markets will be required to report all long-term firm energy and/or capacity purchases from generation capacity located within the RTO/ISO market if the generation is a designated as a network resource or as a resource with capacity obligations. We further clarify that letters of concurrence will not be required to establish which party to a long-term firm power purchase agreement has control of the underlying generation resource(s).
146. The SIL study is used in both the indicative screens and the DPT analysis as the basis for establishing the amount of power that can be imported into the relevant geographic market.
147. In the NOPR, the Commission noted that
148. In the NOPR, the Commission also noted the Commission's finding in Order No. 697 that SIL studies performed by sellers “should not deviate from” and “must reasonable[ly] reflect” the seller's Open Access Same-Time Information System (OASIS) operating practices and “techniques used must have [been] historically available to customers.”
149. The Commission noted that Order No. 697 allows the use of simultaneous total transfer capability (simultaneous TTC) values in performing SIL studies “provided that these TTCs are the values that are used in operating the transmission system and posting availability on OASIS.”
150. In the NOPR, the Commission proposed to clarify several issues about how to perform SIL studies and the associated Submittals 1 and 2 found on the Commission's Web site.
151. The Commission stated that the purpose of the SIL study is to calculate the total simultaneous import capability available to first-tier uncommitted generation resources, while also considering system limitations and existing resource commitments (
152. In the NOPR, the Commission proposed to clarify that the term “OASIS practices” refers specifically to the seasonal benchmark power flow case modeling assumptions, study solution criteria,
153. The Commission also proposed to clarify that in performing a SIL study, the transmission provider must utilize its OASIS practices consistent with the administration of its tariff. The seasonal benchmark power flow cases submitted with a SIL study should represent historical operating practices only to the extent that such practices are available to customers requesting firm transmission service. For example, if the transmission provider does not allow the use of an operating guide when evaluating firm transmission service requests, the transmission provider should not use the operating guide when calculating SIL values.
154. There were no comments on the above proposals. Therefore, we adopt the proposals as set forth in the NOPR to clarify that the term “OASIS practices” refers specifically to the seasonal benchmark power flow case modeling assumptions, study solution criteria, and operating practices historically used by the first-tier and study area transmission providers to calculate and post ATC and to evaluate requests for firm transmission service, and to clarify that in performing a SIL study, the transmission provider must utilize its OASIS practices consistent with the administration of its tariff. We believe these clarifications will improve consistency between the methodology a transmission provider uses to calculate SIL values and the methodology it uses for calculating and posting ATC and for evaluating transmission service requests.
155. In the NOPR, the Commission proposed several clarifications for instances when the methodology a transmission provider uses to calculate SIL values is inconsistent with the methodology the transmission provider uses for calculating and posting ATC and for evaluating transmission service requests. The Commission proposed to clarify that where there is a conflict between OASIS practices and the Commission directions provided in Appendix B of
156. The Commission also reminded sellers that the calculated SIL value should account for any limits defined in the tariff, such as stability or voltage.
157. The Commission also reiterated that sellers may use a load shift methodology to perform a SIL study if they use a load shift methodology in their OASIS practices, “provided they submit adequate support and justification for the scaling factor used in their load shift methodology and how the resulting SIL number compares had the company used a generation shift methodology.”
158. Regarding accounting for long-term firm transmission reservations for generation resources that serve study area load, the Commission proposed to clarify that sellers must reduce the simultaneous TTC value
159. Solomon/Arenchild agree with the Commission's proposal to continue the requirement that SIL studies follow OASIS practices. Southeast Transmission Owners, however, state they are concerned that the Commission's proposal to require sellers to “subtract all long-term firm import transmission reservations, including reservations held by non-affiliated sellers, from the simultaneous TTC value” could yield a misleading conclusion regarding market activity within a given area. According to Southeast Transmission Owners, the possession by a non-affiliate of a long-term transmission reservation across a seller's interface that sinks in the seller's home balancing authority area is an indicator of an open market, representing a decision by a competitor and the ability of that competitor to compete for load in the particular balancing authority area. Southeast Transmission Owners assert that, while the components of the screen inclusive of the SIL may yield a mathematically accurate result, the tabular depiction of the availability of transmission capacity for use by non-affiliates, as proposed in the NOPR, becomes complicated and misleading and results in the market appearing more constrained than it really is. Southeast Transmission Owners urge the Commission to forego adoption of this proposal and not require deduction of long-term reservations held by non-affiliates of the seller. Instead, Southeast Transmission Owners ask that the Commission adopt an approach that appropriately reflects marketplace activity and the availability of transmission capacity to non-affiliates. However, if the Commission proceeds with this proposal, then Southeast Transmission Owners urge that the Commission recognize the ability of sellers, when performing a SIL study and the associated screens, to rebut the results through companion sensitivities and other data that show how the utilization of import capability by non-affiliates is indicative of a competitive marketplace.
160. We clarify that, where there is a conflict between the transmission provider's tariff or OASIS practices and the Commission directions specified in
161. We adopt the proposal that, to the extent that a seller's SIL study departs from actual OASIS practices, such departures are only permitted where use of actual OASIS practices is incompatible with an analysis of import capability from an aggregated first-tier area. The calculated SIL value should account for any limits defined in the tariff, such as stability and voltage.
162. We also adopt the proposal to direct sellers to subtract all long-term firm import transmission reservations (including those held by non-affiliated sellers) from the simultaneous TTC and historical peak load values. Finally, we adopt the proposed revisions to Submittal 2 to account for these non-affiliate long-term firm transmission reservations. We note that the adopted Submittals 1 and 2 spreadsheet has an additional row in Submittal 2 for each non-affiliated long-term firm transmission reservation to more clearly illustrate that each transaction should be reported separately. There is also an additional row in the adopted spreadsheet in Submittal 2 for each power purchase agreement for the same reason.
163. In response to Southeast Transmission Owners, we find that reducing the simultaneous TTC value and historical peak load value by long-term firm transmission reservations held by both affiliates and non-affiliates properly accounts for all import capability used to serve affiliated and non-affiliated load in the study area. This provides an accurate measure of the study area's load and import capability that is not available to uncommitted generation capacity in the first-tier area. We note that such reservations are properly accounted for in the indicative screens and that treating all long-term firm transmission reservations in a consistent manner should reduce confusion rather than increase it. With respect to Southeast Transmission Owners' request that the Commission recognize the ability of sellers to rebut SIL study results through companion sensitivities, we note that sellers “[m]ay submit additional sensitivity studies, including a more thorough import study as part of the DPT. We reaffirm, however, that any such sensitivity studies must be filed in addition to, and not in lieu of, a SIL study.”
164. The Commission proposed to clarify that sellers must account for wheel-through transactions where such transactions are used to serve a non-affiliated load that is embedded within a study area. Specifically, the Commission proposed that the seller reduce the simultaneous TTC value by subtracting the value of all wheel-through transactions. The Commission observed that while wheel-through transactions are not used to serve study area load, they reduce the amount of transmission capability available to first-tier generators competing to serve study area load. Thus, the Commission proposed that these transactions be accounted for as long-term firm import transmission reservations and reported
165. Solomon/Arenchild state they do not understand the rationale and intent of the proposal to include wheel-through transactions as a deduction to the amount of transmission capability available to first-tier generators to serve study area load. According to Solomon/Arenchild, wheel-through reservations generally do not reduce overall import capability because the import schedule nets out against the subsequent export schedule and that such reservations are not used to serve load in the balancing authority area. Southeast Transmission Owners voice similar concerns about the Commission's proposal regarding wheel through transactions.
166. Southeast Transmission Owners are concerned that the proposal may cause confusion among sellers, result in the capture of transactions that are beyond the intended scope, and contribute to less reliable SIL values. Given these concerns over the Commission's proposal, Southeast Transmission Owners request that the Commission (1) clarify or elaborate what it means by wheel through transactions sinking in the seller's area, and (2) limit this new requirement to this category of transactions that are supported by long-term firm reservations held by the seller and its affiliates.
167. We agree with commenters' interpretation of the term wheel-through to mean long-term firm transmission reservations that enter and exit a study area, but do not serve load in that study area. While a wheel-through transaction is still considered to be reserved capability on transmission lines similar to other long-term firm transmission reservations, a traditional wheel-through does not serve a study area's Historical Peak Load and, as such, should not be recognized as a long-term firm transmission reservation for the purposes of the SIL study. Accordingly, we clarify that the NOPR should have instead used the terminology “wheel-into,” which refers to a long-term firm transmission reservation that enters a study area and serves non-affiliated load embedded in that study area. Thus, we make this distinction to clarify these terms in the Final Rule, and to adopt the NOPR proposal to apply to wheel-into transactions rather than to wheel-through transactions.
168. Further, we clarify that wheel-into or other similarly related import transactions supported by first-tier, long-term firm transmission reservations used to serve non-affiliated load embedded within the study area are to be accounted for in a consistent manner, and the seller should reduce the simultaneous TTC value and historical peak load value by subtracting the value of all these transactions.
169. Additionally, while import and export transactions may net out for the purpose of calculating net area interchange, the Commission does not net out such long-term firm transmission reservations that are used to serve non-affiliated load embedded within the study area. Finally, we refine our proposed language in row 3 and row 7 in Submittal 2 to remove any potential confusion with the use of the term “wheel-through” to read, “Transaction to serve non-affiliated, load embedded in the study area using external generation.”
170. The Commission proposed to clarify that, where a first-tier market or balancing authority area is directly interconnected to the study area only by controllable tie lines
171. Solomon/Arenchild seek clarification of the preferred approach for treating controllable tie lines. According to Solomon/Arenchild, there are two reasonable options for treating such lines with regard to the Commission's proposal that SIL studies for markets “directly connected to the study area [first-tier] only by controllable tie lines” should follow OASIS practices regarding calculation and posting of ATC.
172. We clarify that, for purposes of performing market power studies for market-based rate authorization, where a first-tier market or balancing authority area is directly interconnected to the
173. In such circumstances where a seller's OASIS practices are incompatible with the SIL study, sellers shall not model a controllable tie line as a radial line connected to an equivalent study area generator, as proposed by Solomon/Arenchild, as this leads to potential SIL study errors when scaling generation. However, for purposes of calculating the SIL value and consistent with the NOPR proposal, where a first-tier market or balancing authority area is directly interconnected to the study area only by controllable tie lines, each controllable tie line shall be modeled as a radial line connecting the study area to a first-tier area generator located in the first-tier area, and may be scaled as first-tier area generation. For the purposes of allocating SIL values to aggregate uncommitted first-tier generation capacity, sellers must consider actual uncommitted generation capacity in each first-tier area, rather than the capability of the controllable tie line.
174. The Commission stated that in the NOPR that, to the extent that the study area is directly interconnected to first-tier areas by controllable merchant transmission lines (
175. Solomon/Arenchild note their confusion as to controllable merchant lines and the Commission's statement that, “[i]f sellers lack sufficient knowledge regarding the existence and attributes of capacity rights on controllable merchant lines, they shall assume the full capacity of such lines is held by sellers with long-term firm transmission reservations.”
176. We clarify in response to the question asked by Solomon/Arenchild that the reference to “sellers” was intended to be a generic reference to transmission right holders and not to apply to the seller submitting the study.
177. SIL values are net of long-term firm transmission reservation. We find that capacity rights on controllable merchant lines are comparable to long-term firm transmission reservations and should be deducted from the Total Simultaneous Transfer Capability value and Historical Peak Load value. Capacity rights on controllable merchant lines represent import capability that is only available to a specific transmission customer pursuant to the Commission's policies for merchant transmission, and is therefore not generally available to any uncommitted generator in the first-tier area. In the past, some sellers have treated controllable merchant transmission lines as if such lines were available to import generation into the study area. Such treatment is inconsistent with the merchant transmission model. However, sellers should be able to determine whether merchant transmission lines are subscribed given the requirement that merchant transmission developers disclose the results of their capacity allocation process.
178. In the NOPR, the Commission proposed to require sellers to include all load associated with balancing authority area(s) within the study area. The Commission stated that the SIL study is “intended to provide a reasonable simulation of historical conditions” and is not “a theoretical maximum import capability or best import case scenario.”
179. Solomon/Arenchild and Southeast Transmission Owners agree with the Commission's proposal that sellers include in SIL studies all load associated with balancing authority area(s) within the study area, with sellers' specific load obligations accounted for in the indicative screen analysis. However, Idaho Power contends that the Commission's proposal prevents an accurate accounting for a fraction of non-affiliate load that is served by non-affiliate generation when both are located in the study area. Further, Idaho Power argues that the proposal to include both affiliate and all non-affiliate load in the definition of Historical Peak Load means that any remaining amount of non-affiliate load not served by non-affiliate generation in the study area would be included in long-term firm transmission reservations, which would reduce the simultaneous TTC value by this fraction of non-affiliate load. According to Idaho Power, this would lead to the fraction of the non-affiliate load served by internal non-affiliate generation incorrectly appearing as affiliate load.
180. We adopt the proposal to require sellers to include in the SIL studies all load associated with balancing authority area(s) within the study area. With regard to Idaho Power's argument regarding consideration of study area non-affiliate load served by non-affiliate generation, we first note that study area non-affiliate load not served by study area non-affiliate generation would only appear as a long-term firm transmission reservation when served by first-tier generation capacity. Furthermore, as the Commission noted in the NOPR, Adjusted Historical Peak Load includes both affiliate and non-affiliate native load, as well as wholesale load. This ensures the SIL value, when limited by Adjusted Historical Peak Load, remains consistent with the load values in the indicative screens and also does not provide biased SIL values when they are limited by load. This clarification is not intended to re-categorize study area non-affiliated load as study area affiliate load, but rather clarify that they together are available to be served by competitors in the first-tier market and from available non-affiliate generators within the study area. However, we agree with Idaho Power that non-affiliate load served by internal non-affiliate generation with a firm commitment should not be represented as being available to be served by competitors. Therefore, we clarify that when a non-affiliate generator has a firm commitment to serve a non-affiliate load and both are located within the study area, then this non-affiliate generator should not be scaled and the value of this non-affiliate load should not be included in the study area Historical Peak Load as reported on row 7 of Submittal 1.
181. The Commission stated in the NOPR that it is also looking for consistent, reported load values for all sellers to use in preparing SIL studies, noting that
182. Idaho Power believes that, with the other adjustments in the NOPR, use of FERC Form No. 714 data, which includes the balancing authority area load, is appropriate. However, Solomon/Arenchild state that, in their experience, the load included in seasonal benchmark power flow models often does not precisely match loads reported in FERC Form No. 714 and typically used in the indicative screens. Solomon/Arenchild recommend that the Commission allow sellers to use the load data underlying the transmission models for purposes of row 7 of Submittal 1.
183. Southeast Transmission Owners believe that, regardless of its source, the load data must incorporate all data in the market under study. Southeast Transmission Owners use Southern Companies as an example to demonstrate that FERC Form No. 714 may not always reflect aggregated balancing authority area information necessary to determine the historical peak load for the SIL study because the FERC Form No. 714 data reflects load data of the Southern Companies and not the load of all other load-serving entities operating inside the Southern Companies balancing authority area. Therefore, Southeast Transmission Owners argue that, in order to perform a SIL study consistent with the Commission's existing requirements, entities like Southern Companies use archived load data from their energy management systems in order to provide the requisite balancing authority area information needed for the study. Southeast Transmission Owners assert that, while there may be other FERC Form No. 714 alternatives, archived energy management systems data serves as a reliable, cost-effective means for satisfying the Commission's requirements and ensuring that the appropriate inputs to the SIL have been obtained in order to yield accurate results.
184. We do not find it necessary for the load used in the seasonal benchmark case model to exactly match FERC Form No. 714 data. However, the Historical Peak Load reported in row 7 of Submittal 1 should be consistent with the load used in the seasonal benchmark case model. We clarify that entities are permitted to deviate from reported FERC Form No. 714 load values where such values fail to account for all load within the study area, but sellers must explain and document their reasons for using an alternative data source and any adjustments made to the data. In addition, we find it acceptable for sellers to use energy management systems data to represent Historical Peak Load values, so long as sellers attest that such data is unmodified and accurate, and includes all study area affiliate and non-affiliate load.
185. The Commission clarified in the NOPR that the values provided in Submittal 1 should generally be supported by the submitted seasonal benchmark power flow models.
186. We adopt the proposal to clarify that the values provided in Submittal 1 should generally be supported by the submitted benchmark power flow models. Any differences should be explained by the seller. We will also adopt the proposal to update Submittal 1, as reflected in Appendix E of the NOPR, to provide additional clarity on the expected values for certain rows. We will post the revised versions of Submittals 1 and 2 on the Commission's Web site and direct sellers to begin using the revised versions no later than the effective date of this Final Rule.
187. The Commission proposed in the NOPR to define the following standard guidance for data submittals and representations that sellers using the simultaneous TTC method must provide to the Commission. First, the Commission stated that sellers must provide historical data of actual, hourly, real-time TTC values used for operating the transmission system and posting transmission capacity availability on OASIS. Sellers should identify the date and hour from which simultaneous TTC values were calculated. Sellers may use the maximum sum of TTC values for any day and time during each season, so long as they also demonstrate that these TTC values are simultaneously feasible. Sellers may demonstrate that TTC values are simultaneously feasible by performing a power flow study that verifies that the declared simultaneous TTC value is simultaneously feasible while accounting for all internal and external transmission limitations identified in Appendix E of the NOPR and
188. The Commission reiterated that, in the event there are limited interconnections between first-tier markets, the Commission will review evidence that potential loop flow between first-tier areas is properly accounted for in the underlying SIL values on a case-by-case basis.
189. There were no comments addressing this proposal. Thus, we adopt the standard guidance for data submittals and representations that sellers using the simultaneous TTC method must provide to the Commission.
190. Solomon/Arenchild seek several clarifications relating to the determination of the SIL and its application in the indicative screens versus a DPT analysis. First, they state that the SIL value for the indicative screens is calculated for four seasonal peaks (Winter, Spring, Summer, and Fall), whereas the DPT analysis typically evaluates a “Shoulder” season that combines Spring and Fall. Solomon/Arenchild seek that the Commission clarify that the DPT analysis of a “Shoulder” season should use the average of the Spring and Fall values, unless it can be demonstrated that facts exist to support use of either Spring or Fall values alone for the Shoulder season.
191. Second, Solomon/Arenchild state that, in their experience, the SIL values used in the DPT and those reported in the SIL submittals may legitimately differ as a direct result of underlying differences between the DPT and the indicative screens related to the treatment of long-term transmission reservations. Solomon/Arenchild ask that the Commission clarify that it is appropriate when calculating the SIL values used in the DPT analysis not to deduct any associated long-term transmission for a remote generating facility during a period when such generation is not fully available or not economic (or, alternatively, to increase the SIL to reflect additional import capacity).
192. Finally, Solomon/Arenchild seek clarification of the definition of “long-term firm transmission contracts.” According to Solomon/Arenchild, the Commission's current regulations define transmission contracts with a term of 28 days or more as “long-term” and direct that such contracts be reflected in the SIL analysis. However, Solomon/Arenchild assert that such contracts may be excluded in the indicative screen analysis and/or the DPT because they do not meet the definition of “long-term” as being one year or longer, as used for analyzing energy markets. While they recognize that both the SILs and the indicative screens are intended to depict an accurate historical representation of markets, Solomon/Arenchild contend that including only transmission reservations with durations of one year or longer provides a more robust analysis. Accordingly, Solomon/Arenchild suggest that the Commission clarify that only long-term contracts, including seasonal contracts, that are one year or longer be included in both the SIL study and the indicative screen and/or DPT analyses.
193. EEI states it is concerned with the volume of clarifications in the Commission's proposal regarding SIL studies. EEI encourages the Commission to engage in further dialogue with the regulated community about the proposed changes, to ensure that the changes are reasonable, clear, accurate, and easy to implement. Additionally, EEI expresses concern that some of its members are already being required to make changes in their SIL analyses.
194. Southeast Transmission Owners support EEI's request for the Commission to further caucus with industry regarding SIL studies. Given the complexities underlying the market-based rate program and the fact that industry's most recent round of triennial updated market power analysis filings will continue until June 2016, Southeast Transmission Owners state that the Commission does not need to rush action with regard to these proposals.
195. SoCal Edison recommends that the Commission require each RTO/ISO, and the CAISO in particular, to perform a SIL study for common use.
196. We find Solomon/Arenchild's request for clarification regarding which Spring and Fall SIL values to use for the DPT analysis to be beyond the scope of this rulemaking proceeding. We also find their request for clarification regarding calculation of the SIL values used in the DPT analysis to be beyond the scope of this rulemaking proceeding.
197. Additionally, we decline Solomon/Arenchild's request to redefine the applicable duration of long-term firm transmission reservations, currently defined as 28 days or longer, for purposes of the SIL study as this would inflate the amount of import capability available on a long-term basis. Solomon/Arenchild have not demonstrated why the Commission should change the definition for purposes of the SIL study. Indeed, the power flow cases utilized for SIL studies are a reflection of seasonal peaks such that a “monthly” designation for such reservations appropriately captures this designation.
198. With regard to concerns about the volume and complexity of changes, we remind commenters that the proposed rule is primarily a clarification of existing policy and that the need for this clarification was based in part on a lack of specificity resulting in confusion with the SIL study process. To the extent sellers remain confused about any aspect of the Commission's instructions regarding SIL studies, Commission staff will continue to be available to discuss these issues prior to an applicant submitting its filing.
199. In response to SoCal Edison's request for the Commission to require each RTO/ISO to perform a SIL study for common use, the RTOs/ISOs do not have market-based rate tariffs on file; thus, we will not require SIL studies from RTOs/ISOs.
200. In the NOPR, the Commission noted that all market-based rate sellers currently are required to provide, as part of their vertical market power analysis, a description of their ownership or control of, or affiliation with an entity that owns or controls, sites for generation capacity development
201. Thus, the Commission proposed to revise the regulations at 18 CFR 35.42 relating to change in status reporting requirements to remove paragraph (d). This proposed revision would remove the requirement that sellers report the acquisition of control of a site or sites for new generation capacity development for which site control has been demonstrated. Likewise, the Commission proposed to revise the regulations at 18 CFR 35.42 to remove paragraph (e), which pertains to the definition of site control for purposes of paragraph (d). In addition, the Commission proposed to revise 18 CFR 35.42 at paragraph (b) to remove the reference to the reporting of acquisition of control of a site or sites for new generation capacity development. The Commission also proposed to revise the market power analysis regulations at 18 CFR 35.37 to remove paragraph (e)(2), which requires sellers to provide information regarding sites for generation capacity development to demonstrate a lack of vertical market power.
202. Several commenters support the Commission's proposal to eliminate the land acquisition reporting requirements.
203. EPSA and NRG Companies note that the purpose of the initial applications, triennial updates, and notices of change in status, is to identify for the Commission material facts and changes relevant to a seller's qualification for market-based rate authority. EPSA and NRG Companies state that requirements that sellers file quarterly land acquisition reports fail to further the purpose of the triennial updates and notices of change in status filings.
204. NextEra asserts that, in addition to being burdensome, the reports have limited value because the land acquisition reporting requirements do not allow the netting of generation in the interconnection queue when a market-based rate seller withdraws a proposed project from the interconnection queue or places a new project in-service. According to NextEra, as a result, the information on file with the Commission does not accurately reflect actual site control in the interconnection process and the quarterly reports provide little useful information to the Commission or the public.
205. On the other hand, other commenters oppose removing the land acquisition reporting requirements.
206. Similarly, APPA/NRECA states that a number of economic, technological, and regulatory factors are inducing the retirement of substantial coal generation and the construction of substantial new gas-fired and renewable generation in the coming years. APPA/NRECA asserts that where this new generation will be located will be an important issue because most of the new generation will be location-constrained renewable resources. Further, APPA/NRECA asserts that, because of constraints on gas pipeline capacity, the location of gas-fired generation sites relative to existing and proposed gas pipelines is also critical. Lastly, APPA/NRECA asserts that the retirement of coal generation can change the economic and reliability factors that will determine where new generation may be located. APPA/NRECA warns that, because the location of new generation build-out may have important economic consequences, the Commission should not ignore the barriers to entry created by the acquisition of new generation sites.
207. We adopt the NOPR proposal to eliminate the land acquisition reporting requirements.
208. We continue to find that the current land acquisition reporting is of limited value in assessing barriers to entry. The existing land acquisition reports include: (1) The number of sites acquired; (2) the relevant geographic market in which the sites are located; and (3) the maximum potential number of megawatts that are reasonably commercially feasible on the sites reported.
209. As noted above, the land acquisition reporting requirements are burdensome for sellers and yield little, if any, offsetting benefit. Out of 58 filings of land acquisition reports from the fourth quarter in 2013 to the first quarter in 2015, none has been contested or has provided sellers and the Commission with useful information regarding barriers to entry.
210. In response to the concerns raised by AAI and APPA/NRECA, we clarify that intervenors are free to challenge an applicant's claims that it has not erected barriers to entry. We also reiterate that the Commission retains the right to request additional information on such potential barriers to entry from the seller at any time if it has reason to believe that a seller's acquisition of land has created a barrier to entry or otherwise been used to exercise vertical market power.
211. Finally, AAI suggests that the Commission utilize a comprehensive database to monitor the acquisition of generation sites in a systematic fashion. However, the Commission did not propose any refinements to the information collected in land acquisition reports but rather the elimination of the requirement. The comprehensive database recommended by AAI would be a major undertaking with uncertain benefits, for the reasons stated above, and is beyond the scope of this rulemaking. For these reasons, we reject this request.
212. We adopt the NOPR proposal to revise the regulations at 18 CFR 35.42 relating to the change in status reporting requirements to remove paragraph (d), the requirement that sellers report the acquisition of control of a site or sites for new generation capacity development for which site control has been demonstrated. We will also remove paragraph (e), which pertains to the definition of site control for purposes of paragraph (d), and revise paragraph (b) to remove the reference to the reporting of acquisition of control of a site or sites for new generation capacity development. Further, we adopt the NOPR proposal to revise the market power analysis regulations at 18 CFR 35.37 to remove paragraph (e)(2), which requires sellers to provide information regarding sites for generation capacity development to demonstrate a lack of vertical market power.
213. In Order No. 697–A, the Commission clarified that sellers must report a change in status when they acquire 100 MW or more in the “geographic market that was the subject of the horizontal market power analysis on which the Commission relied in granting the seller market-based rate authority.”
214. In Order No. 697–A, the Commission also provided the following example, “if a seller has a net increase of 50 MW in the geographic market on which the Commission relied in granting the seller market-based rate authority and 50 MW increase in a different geographic market that is in the same region . . . , the 100 MW or more threshold would not be met because the increase in generation capacity is less than [100] MW in each generation market and, accordingly, a change in status filing would not be required.”
215. The Commission further proposed to require that the 100 MW threshold requirement for change in status filings be calculated based on a generator's nameplate capacity rating because it is a single value, it exists for all types of generators, it is generally a more conservative value than a seasonal or five-year average rating would be, and it allows for uniform measurements across different types of generators.
216. The Commission proposed to revise the regulatory text in section 35.42(a)(1) of the Commission's regulations to provide greater clarity and direction on this topic.
217. Several commenters object to the Commission's proposal to consider cumulative net increases of 100 MW or more of nameplate capacity in any relevant geographic market as well as any first-tier/interconnected market with the potential to import into that market when determining whether to report a change in status.
218. EEI contends that the Commission should not attribute changes in generation in one market to another market, even if the markets are first-tier to one another.
219. E.ON notes that the Commission proposes to require a seller to notify the Commission when it becomes affiliated with “100 MW or more in
220. Several commenters oppose the Commission's proposal to use nameplate capacity to calculate the 100 MW change in status threshold.
221. Similarly, E.ON states that, if an affiliate of a market-based rate seller acquires an interest in or builds 100 MW or more of energy-limited generation, the Commission may already have on file five years of historical average capacity ratings or EIA-derived data for the energy-limited generation and argues that it would be a “mismatch” to apply nameplate rating to the energy-limited generation for the purposes of triggering any notice of change in status filing requirement.
222. Other commenters argue that notices of change in status need not be filed in certain circumstances.
223. Additionally, AEP and E.ON argue that the Commission should eliminate altogether the notice of change in status requirement for sellers within RTOs. AEP explains that, to the extent market power concerns are implicated by a market-based rate seller's acquisition or new affiliation, the extensive Commission-approved RTO market monitoring and mitigation rules adequately prevent the exercise of market power without the need for the seller to file an additional report.
224. E.ON requests that the Commission clarify that a notice of change in status filing is not necessary where an affiliate of a market-based rate seller is granted market-based rate authorization.
225. NextEra claims that this notice of change in status proposal is confusing in light of another NOPR proposal to eliminate the requirement to provide indicative screens where all of a seller's and its affiliates' generation in the relevant market is committed under long-term power purchase agreements.
226. EPSA notes that sellers are required to report a change in status when an additional 100 MW in a relevant geographic market is attained, but states that it is unclear whether the change in status reporting requirement is then “reset” and a notice of change in status is necessary when another 100 MW of controlled generation is
227. FirstEnergy recommends that, in addition to the proposal to relieve RTO/ISO sellers from the obligation to file the indicative screens, the Commission should relieve RTO/ISO sellers from the obligation to submit notices of change in status relating to increases in generation capacity. Similarly, AEP recommends that the Commission relieve RTO/ISO sellers from the obligation to submit notices of change in status altogether. EEI encourages the Commission to consider providing broader relief from change in status reporting to utilities with FERC-approved market power mitigation measures to reduce the burden associated with the market-based rate program. EEI states that the same principles underlying the proposed exemption of sellers with FERC-approved market power mitigation from providing the indicative horizontal market screens in their market power updates could apply equally to the overall change in status reporting requirements.
228. We adopt the NOPR proposal with certain modifications and clarifications. In the NOPR, the Commission proposed to apply the 100 MW threshold to a seller's and/or its affiliates' generation capacity in each relevant market and first tier market(s), and to also apply the 100 MW threshold to each new relevant market (not previously studied) in which a seller and/or its affiliates acquire a cumulative net increase of 100 MW. The NOPR also proposed to require that the 100 MW threshold for change in status filings be calculated based solely on a generator's nameplate capacity rating.
229. We believe that the Solomon/Arenchild and NextEra comments with respect to the calculation of the 100 MW threshold have merit
230. Therefore, we will modify the proposal set forth in the NOPR. The 100 MW threshold for reporting a change in status will apply to a seller's and/or its affiliates' net generation capacity additions in each individual market, but will exclude markets and balancing authority areas that are first-tier to the seller's study area. This means a seller need not consider its and its affiliates new generation, including generation from long-term purchase agreements, in first-tier areas in determining whether it has reached the 100 MW threshold.
231. However, we confirm that, consistent with the NOPR, the 100 MW threshold applies to each new relevant market (not previously studied) in which a seller and/or its affiliates acquire a cumulative net increase of 100 MW. To find otherwise would allow a loophole where an applicant could request and be granted market-based rate authority with a small amount of generation in one market, qualify as a Category 1 seller, and then accumulate large amounts of generation in other markets in the same region such that the seller could become Category 2 in the region without notifying the Commission. In addition, applying the 100 MW threshold to each new relevant market ensures that sellers study the generation acquired in any additional market that meets or exceeds this threshold.
232. Further, we believe that the comments opposing the Commission's proposal to require use of nameplate capacity to calculate the 100 MW change in status threshold have merit.
233. We disagree with FirstEnergy's contention that section 203 approvals should obviate the need for subsequent change in status filings for further Commission review under section 205. The Commission's analyses under sections 203 and 205 consider different criteria for approving transactions; therefore, it is not a given that a seller that passes a section 203 analysis will pass a section 205 analysis. Furthermore, the data required for the Commission's analyses under FPA sections 203 and 205 differ; section 203 filings are prospective, with studies based on projected data, whereas the change in status filings under section 205 require studies based on historical data.
234. Additionally, we reject AEP's, E.ON's, FirstEnergy's, AEP's, and EEI's requests that the Commission eliminate the change in status requirements for sellers located in RTOs/ISOs.
235. We reject EEI's request to report minor changes in organization or other information covered by the change in status requirements cumulatively with another change in status filing instead of in separate change in status filings. Any change in other information covered by the change in status requirements must be reported within 30 days of the change. We interpret EEI's request to be that “minor change” be permitted to be filed more than 30 days after the change,
236. Additionally, we reject EEI's proposal to increase the 100 MW change in status reporting threshold.
237. With regard to E.ON's request that the Commission clarify that the “any relevant market” language is limited to the applicable geographic region and applicable first-tier markets,
238. Additionally, in response to E.ON's requests that the Commission clarify if a seller needs to submit a change in status if it acquires generation in an RTO market where it sells energy products, and clarify whether a seller has to file a change in status when an affiliate is granted market-based rate authority, we clarify as follows. A seller should submit a change in status when it acquires generation in any market, including an RTO market where it sells electric products. Further, if a seller's affiliate is granted market-based rate authority, and that results in 100 MW or more of new generation capacity in a market, then the seller will have to file a corresponding change in status. Therefore, we reject E.ON's recommendation to revise the change in status policy so that only one substantive filing is submitted to the Commission.
239. In response to NextEra's contention that the notice of change in status proposal is confusing because it conflicts with the NOPR proposal to eliminate the requirement to provide indicative screens where all of a seller's and its affiliates' generation in the relevant market is committed under long-term power purchase agreements, we clarify as follows.
240. We clarify in response to EPSA that if a seller acquires more than 100 MW, it should report all of the newly acquired generation to ensure that the net change in generation capacity is reported in a timely manner. Furthermore, once a seller files a change in status for a net increase of 100 MW or more of generation capacity, the threshold is effectively reset such that the seller must file a change in status each time it acquires an additional 100 MW or more of generation capacity.
241. Market-based rate sellers are required to make a change in status filing when, among other requirements in section 35.42 of the Commission's regulations, they become affiliated with entities that: (1) Own or control generation; (2) own or control inputs to electric power production; (3) own, operate, or control transmission facilities; or (4) have a franchised service territory. There currently is no 100 MW threshold for reporting new affiliations (but there is a 100 MW threshold for net increases for a seller's owned or controlled generation facilities). In the NOPR, the Commission proposed to revise the change in status regulations to include a 100 MW threshold for reporting new affiliations. That is, a market-based rate seller that has a new affiliation would not be required to file a change in status for an affiliation with an entity with generation assets until its new affiliations result in a cumulative net increase of 100 MW or more of nameplate capacity in any relevant geographic market. The Commission noted that the 100 MW threshold for reporting new generation strikes the proper balance between the Commission's duty to ensure that market-based rates are just and reasonable and the Commission's desire not to impose an undue regulatory burden on market-based rate sellers.
242. The Commission also clarified that the requirement to submit a notice of change in status to report affiliation with new generation, transmission, or intrastate gas pipelines includes reporting that asset in the seller's asset appendix. The Commission proposed to amend section 35.42(c) to clarify that sellers must include all new affiliates and any assets owned or controlled by the new affiliates in the asset appendix.
243. The Commission further proposed in the NOPR that “all assets” include behind-the-meter generation and qualifying facilities.
244. The Commission also proposed that sellers should include these assets in their indicative screens, as well as in their asset appendix and that sellers should include this generation when calculating the 100 MW change in status threshold and the 500 MW Category 1 threshold.
245. Commenters generally support the Commission's proposal to revise the change in status regulations to include a 100 MW threshold for reporting new affiliations.
246. FirstEnergy supports the proposal to require generating capacity associated with qualifying facilities and behind-the-meter generation to be considered when determining the applicability of the Commission's rules for filing notices of change in status and updated market power analyses.
247. Several commenters oppose the Commission's proposal to include behind-the-meter generation as part of the 100 MW change in status threshold.
248. NRG Companies, NextEra, and SunEdison argue that behind-the-meter generation does not contribute to market power and should be excluded from the asset appendix.
249. El Paso recognizes the increasing role of behind-the-meter generators in wholesale power markets and does not oppose the Commission's inclusion of behind-the-meter generation in the indicative screens.
250. Other commenters seek clarification of the Commission's proposed changes to the change in status reporting requirements, as they relate to behind-the-meter generation. Specifically, EPSA argues that, if a seller has behind-the-meter generation that is used solely to operate equipment for production (such as an oil or gas operation that uses behind-the-meter generation to produce oil or gas), such behind-the-meter generation should not be counted towards the 100 MW threshold because that generation is never offered or sold into the market. EPSA recommends the Commission clarify that any such behind-the-meter generation that is wholly self-consumed would not count towards the 100 MW threshold.
251. We adopt the NOPR proposal to establish a 100 MW threshold for reporting new affiliations in change of status filings. A market-based rate seller that has a new affiliation will not be required to file a change in status for an affiliation with an entity with generation assets until its new affiliations result in a cumulative net increase of 100 MW of capacity in a relevant geographic market.
252. However, we do not adopt the NOPR proposal to count behind-the-meter generation in the 100 MW change in status threshold and 500 MW Category 1 seller status threshold and to include such generation in the asset appendices and indicative screens.
253. We agree with El Paso that the output of behind-the-meter generation should be reflected in the load data reported in the FERC Form No. 714. That is, the load reported in FERC Form No. 714 reflects the fact that the load is lower than it otherwise would be if a portion of the load were not served by behind-the-meter generation. Additionally, since behind-the-meter generation is netted out of the load data, requiring sellers to count behind-the-meter generation as installed capacity could result in double-counting a portion of the seller's generation capacity. Moreover, we clarify that behind-the-meter generation that is consumed on-site by the host load and not sold into the wholesale market, or is not synchronized to the transmission grid, is not relevant to the Commission's horizontal market power analysis.
254. Given our decision not to require sellers to include behind-the-meter generation in their asset appendices, indicative screens, and for purposes of calculating the 100 MW change in status threshold and 500 MW Category 1 threshold, we will not address the remaining requests for clarifications made by NRG Companies, NextEra, SunEdison, EPSA, and SoCal Edison.
255. Finally, we clarify that qualifying facilities that are exempt from FPA section 205
256. As discussed elsewhere in this Final Rule, the Commission proposed to require reporting of long-term firm purchases in the indicative screens and also proposed to include such contracts when determining the 100 MW threshold for change in status filings.
257. The comments addressed in the discussion on treatment of long-term contracts generally encompass the issues in this section. However, SoCal Edison states that the Commission should clarify that it will permit long-term firm purchase aggregation from small generators, such as qualifying facilities under 20 MW. SoCal Edison requests that such aggregation be permitted to relieve the burden that otherwise would be imposed.
258. The requirement to report long-term firm purchases in the asset appendix and indicative screens and to require that such contracts be counted towards the 100 MW threshold is discussed elsewhere in this Final Rule.
259. The Commission proposed clarifications and revisions to the required appendix that contains the lists of generation and transmission assets.
260. The Commission proposed to make three changes to the existing columns in the asset appendix. The Commission proposed to change a column heading on both assets lists from “Balancing Authority Area” to “Market/Balancing Authority Area” to reflect the correct location for assets in organized markets as well as in balancing authority areas. The second proposal was to change a column heading on both asset lists from “Geographic Region (per Appendix D)” to “Geographic Region” because there have been changes to some regions since the Commission originally published the region map in Appendix D of Order No. 697. Finally, the Commission proposed to change the heading for the “Nameplate and/or Seasonal Rating” column of the generation list to “Capacity Rating (MW): Nameplate, Seasonal, or Five-Year Average” to
261. The Commission further proposed to clarify that the asset lists should not contain any information other than what is required in the respective columns. For instance, sellers frequently include footnotes in their appendices that cause the appendices to become unwieldy and difficult to read or understand. Sellers sometimes explain in these footnotes that some facilities are partially owned, that some affiliates included in their asset lists may not actually be affiliates but are included out of an abundance of caution, or that a facility is expected to come on-line or off-line at some future date. The Commission discouraged any such footnotes and directed that any such representations be made in the filing transmittal letter.
262. Thus, the Commission proposed to modify the example of the required appendix found in appendix B to subpart H of part 35 of the Commission's regulations to incorporate these changes.
263. Few commenters express concern about the Commission's proposed changes to the existing columns in the asset appendix.
264. Several commenters oppose the Commission's proposal to clarify that asset lists should not contain any information other than what is required in the respective columns.
265. We adopt the proposed changes to the existing columns in the asset appendix on both asset lists from “Balancing Authority Area” to “Market/Balancing Authority Area” to reflect the correct location for assets in organized markets, as well as in balancing authority areas. We also adopt the proposed column heading change from “Geographic Region (per Appendix D)” to “Geographic Region” because there have been changes to some regions since the Commission originally published the region map in Appendix D of Order No. 697. We note, with regard to EEI's comment, that removing the reference to Appendix D removes an outdated reference to the Appendix in Order No. 697. Further, to aid in identification of similarly named columns in the asset lists, we are adding an alphabetic label to each column in the asset lists in the new Asset Appendix.
266. We do not adopt the proposal to change the heading for the “Nameplate and/or Seasonal Rating” column of the generation list to “Capacity Rating (MW): Nameplate, Seasonal, or Five-Year Average.” Instead, in response to the Solomon/Arenchild comments, we will modify the generation asset list to clearly distinguish between the nameplate rating and an alternative rating of a generation facility. Specifically, we are removing the “Nameplate and/or Seasonal Rating” column and replacing it with three new Columns [J], [K], and [L], entitled “Capacity Rating: Nameplate (MW)”, “Capacity Rating: Used in Filing (MW)”, and “Capacity Rating: Methodology Used in [K]: (N)ampelate, (S)easonal, 5-yr (U)nit, 5-yr (E)IA, (A)lternative,” respectively.
267. Finally, we adopt the NOPR proposal to prohibit footnotes from the asset appendices. However, in response to commenters' concerns about loss of clarity and information, we adopt EPSA's suggestion and add a separate column to the asset appendix for explanatory notes and clarifications. We are adding a column entitled “End Note Number (Enter text in End Note Tab)” as the final column in the generation list (Column [M]), transmission list (Column [J]), and, as discussed below, the new long-term firm power purchase agreement list (Column [I]), and creating an additional end notes list. The end notes list will have three columns: Column [A] “End Note Number;” Column [B] “List (Generation, PPA, or Transmission);” and Column [C] “Explanatory Note.” When a seller wants to provide more information about a particular facility in an asset appendix list, the seller will place a number in the appropriate end note column of the row listing that facility. Furthermore, the seller will then enter that number in Column [A] of the end notes list, specify in Column [B] which asset list this end note refers to, and finally, enter in Column [C] the explanatory text.
268. The Commission also proposed to require sellers to include all of their long-term firm purchases of capacity and/or energy in their indicative screens and asset appendices, regardless of whether the seller has operational control over the generation capacity supplying the purchased power. The Commission stated that this approach will help size the market correctly and will establish consistent treatment of long-term firm sales and long-term firm purchases.
269. Several commenters requested clarification regarding how to account for long-term firm purchases in the asset appendix. For example, SoCal Edison states that it will not be possible to fill out the asset appendix as currently proposed where a long-term firm purchase is not tied to a physical generating asset and suggests separating the appendix into two appendices—one for seller's/applicant's generation and one for seller's/applicant's long-term firm purchases.
270. We do not find the comments opposed to reporting of long-term firm purchases in the asset appendix to be persuasive and adopt the NOPR proposal to require sellers to report all of their long-term firm purchases of capacity and/or energy in their indicative screens and asset appendices. However, we agree with commenters that the format of the generation asset list is not well suited for reporting long-term purchases. Therefore, we are implementing SoCal Edison's recommendation to create a separate list for a seller's long-term firm purchases.
271. NextEra requests that purchasers under a long-term firm power purchase agreement be allowed to use EIA regional data. As discussed above in the section on capacity ratings, we permit use of EIA regional data but only for energy-limited facilities that lack five years of operating data or for non-affiliated energy-limited facilities for which the seller cannot obtain operating data.
272. The Commission noted that its post-Order No. 697 experience has been that, with respect to the column in the list of generation assets that is currently labeled “Nameplate and/or Seasonal Rating,” some sellers report
273. The Commission proposed the following clarifications with respect to the asset appendix: (1) A seller must enter the entire amount of a generator's capacity (in MWs) in the “Capacity Rating (MW): Nameplate, Seasonal, or Five-Year Average” column of the generation list even if the seller only owns part of a facility; (2) a seller should list only one of the following as a “use” in the “Asset Name and Use” column of the transmission list: Transmission, intrastate natural gas storage, intrastate natural gas transportation, or intrastate natural gas distribution; and (3) entities and generation assets in which passive ownership interests have been claimed should not be included in the horizontal market power indicative screens or reported in the appendix.
274. The Commission explained that if a seller does not believe that the entire capacity of a generation facility should be included in its indicative screens, it may explain its position in the transmittal letter filed with its horizontal market power screens, including letters of concurrence where appropriate,
275. The Commission noted that generating units within a single plant may be aggregated in a single row of the generation list if the information in the other columns is the same for all units, but separate plants cannot be aggregated into a single row. As discussed and adopted elsewhere in this Final Rule,
276. With respect to the “Date Control Transferred” column in both the generation and transmission asset lists, the Commission proposed to clarify that the “Date Control Transferred” column should identify the date on which a contract or other transaction that transfers control over a facility became effective. The Commission noted that where appropriate, sellers may enter “N/A” in this field to indicate that it is not applicable to their asset(s) and explain why in the end note list.
277. With respect to the “Size” column in the list of transmission assets, the Commission proposed to clarify that the “Size” refers to both the length of the transmission line (
278. Several commenters express concern over the Commission's proposal to require a seller to include the entire amount of a generator's capacity in its asset appendix, even if the seller only owns part of a facility.
279. We adopt the NOPR's proposed clarification that a seller must enter the entire amount of a generator's capacity in the generation asset list. In response to commenters' concerns that the NOPR proposal could result in double counting, confusion, or other inconsistencies, we believe we have addressed those concerns through the addition of capacity rating and end notes columns discussed above. Specifically, as discussed more fully above, we are adopting Solomon/Arenchild's proposal to add a new end notes column where sellers will be able to place explanatory notes.
280. SoCal Edison questions the continued need for mileage of transmission assets as required in the asset appendix for entities that own integrated transmission networks rather than number of interconnection customer's interconnection facilities. SoCal Edison argues that the total length in miles of a utility's integrated network transmission assets has no meaningful relationship to the ability to exercise vertical market power. SoCal Edison further argues that one of the aims of the distributed generation movement is to slow transmission growth, such that a lack of transmission system growth could merely reflect state preference for distributed generation over long-distance transmission. Finally, SoCal Edison argues that FERC Form No. 1 provides the Commission an annual update of the transmission mileage for major utilities and should prove sufficient for analysis. SoCal Edison recommends that the Commission explain the need to track mileage of transmission lines in service and how it relates to vertical market power, particularly in light of third parties' ability to build new transmission additions under Order No. 1000.
281. We disagree with SoCal Edison that reporting the mileage of
282. Some commenters took issue with the Commission's proposal to clarify that entities and generation assets in which passive ownership interests have been claimed should not be reported in the asset appendix.
283. However, AAI cautions the Commission against eliminating the passive ownership interests reporting requirement. AAI argues that a passive interest can still affect competitive dynamics in the market because control is not the sole factor to determine whether an entity exercises market power.
284. We clarify that sellers should not include in their asset appendices entities and facilities for which they have claimed, and demonstrated to the Commission, that the only relationship is through passive, non-controlling interests consistent with
285. The Commission proposed clarifications regarding: Populating the “Use” column in the transmission asset list; listing each asset once in an asset list; matching seller and affiliate names in the asset lists with the name registered in the Commission's company registration database where possible; and the use of the “Date Control Transferred” column in the transmission asset list.
286. We did not receive any comments directly related to the aforementioned proposals. However, Solomon/Arenchild raised a concern related to clarifications regarding existing columns in the asset appendix. Solomon/Arenchild note that the proposed reporting of capacity values in generation asset list in the asset appendix may be inconsistent with the indicative screens. Specifically, Solomon/Arenchild state that there is a disconnect between the time period covered in the asset appendix and the time period covered in the indicative screens.
287. We adopt the proposed clarifications regarding: Populating the “Use” column in the transmission asset list; listing each asset once in an asset list; matching seller and affiliate names in the asset lists with the name registered in the Commission's company registration database where possible; and to the use of the “Date Control Transferred” column in the transmission asset list.
288. In regard to the “Date Control Transferred” column, we further clarify that sellers should identify the date on which a contract or other transaction that transfers control over a facility becomes effective. Where appropriate, companies may enter “N/A” in this field to indicate that it is not applicable to their asset(s) and provide any further explanation in the new end notes column.
289. We do not adopt Solomon/Arenchild's recommendation to modify the data in the market power analysis to match the data required for the asset appendix. In Order No. 697, the Commission stated “that when the Commission evaluates an application for market-based rate authority, the Commission's focus is on whether the seller passes both of the indicative screens based on unadjusted historical data. Likewise, when a seller fails one or both of the screens and the Commission evaluates whether that seller passes the DPT, the Commission's focus is on whether the seller passes the DPT based on unadjusted historical data”
290. For initial applications where the seller has acquired an existing facility, sellers should prepare or rely on a study with historical data that transfers the MW values of the acquired generation from the Non-Affiliate Capacity rows to the Seller and Affiliate Capacity rows of their indicative screens and enter the information for the acquired facility in the generation asset list.
291. For initial applications where the seller has newly built generation, sellers should submit a study that increases the total capacity value of the market/balancing authority area in which the seller is physically located by the seller's newly built generation capacity. To accomplish this, the seller should use a previously approved study and add the value of their newly built generation to the total capacity value of the market/balancing authority area. Sellers must report this newly built generation in the generation asset list.
292. In triennials, there are occasions when a seller's generation fleet at the time of filing has changed since the close of the relevant study period. In these instances, sellers should explain the changes in the text of their filing, the end notes of the asset appendix if applicable, and if the changes are significant, the seller should provide a sensitivity analysis reflecting those changes.
293. Notices of change in status generally do not require indicative screens. However, sometimes a seller provides screens for changes that the seller considers significant enough to merit the submission of screens to show that it would not fail the indicative screens with these new assets. In this case, we clarify that any studies submitted by a seller should use the most recently available historical data for the market, but include the seller's current generation portfolio, imports, and load and reserve obligations (if any).
294. We understand Solomon/Arenchild's concern that the indicative screens cannot solely rely on the ratings reported in the asset appendix. Based on our experience, sellers that use seasonal ratings for thermal generation in their indicative screens are likely to use either summer or winter ratings in their asset appendix. However, in some cases sellers that use seasonal ratings in their screens use nameplate ratings in their asset appendix. Therefore, we clarify that when sellers use seasonal ratings in their indicative screens, their asset appendix should include the capacity rating used for each generation unit in their pivotal supplier screen(s). Requiring sellers to report the capacity rating used in their pivotal supplier screen eliminates this inconsistency and allows us to maintain the simplicity of the asset appendix. In addition, this ensures that the generation asset list displays the seasonal rating of each generation unit at the time of peak demand, when capacity is most needed.
295. The Commission has stated that even if a seller has been granted waiver of the requirement to file an OATT, those transmission facilities should be reported in its asset appendix,
296. While APPA/NRECA support the Commission's proposal to require a seller that has been granted waiver of the requirement to file an OATT for its facilities to cite the Commission order granting that waiver in its list of transmission assets in the asset appendix,
297. Other commenters argue that the proposal is unnecessary and unclear.
298. We adopt the proposal to require sellers to add a citation to the order accepting a seller's OATT. Further, we agree with FirstEnergy's suggestion that if a seller has transferred operational control of its facilities to an RTO/ISO, this cite should be to the order authorizing the transfer. Therefore, we have changed the text to the proposed column (Column [B]) of the transmission asset list from “Cite to Order Accepting OATT or granting OATT waiver” to “Cite to order accepting OATT or order approving the transfer of transmission facilities to an RTO or ISO.” The change to remove “granting OATT waiver” is discussed below.
299. We do not agree with AEP's assertion that this requirement is an extra imposition upon sellers. Further, in regard to AEP and EEI's comments, we understand that OATT information is already publicly available. However, sellers are already required to supply this information as part of their demonstration that they meet the Commission's vertical market power requirements. The new column provides a convenient location for sellers to provide the information and for the Commission or third-parties to find the information. We clarify that sellers are not expected to change the citation every time they revise or update their OATTs. Similar to Column [B] “Docket # where market-based rate authority was granted” in the generation asset list, we expect sellers to provide citation to the initial order accepting a seller's OATT or accepting the seller's transfer of transmission facilities to an RTO/ISO in Column [B] of the transmission asset list. This will minimize any burden associated with including this information in the transmission asset list.
300. However, we do not adopt the NOPR proposal to require sellers to add a citation to orders granting the seller waiver of the OATT requirements. We agree with SoCal Edison that this requirement will not provide useful information, in light of the Final Rule in the ICIF proceeding.
301. Currently, virtually all of the asset appendices are submitted to the Commission using PDF format. Staff is unable to perform calculations on PDF files, or to search, or sort the data contained in the asset lists. Staff therefore frequently transfers the information included in the asset lists into spreadsheets for sorting, comparison purposes, and internal calculations, and in doing so has found numerous submission errors from sellers. In the NOPR, the Commission stated that if it provided a sample electronic spreadsheet and required sellers to submit the assets lists in an electronic spreadsheet, it would reduce filing burdens, improve accuracy, decrease the number of staff inquiries to sellers regarding submission errors, and result in a more efficient use of resources.
302. Therefore, the Commission proposed to require market-based rate sellers to submit the appendix B asset lists in an electronic spreadsheet format that can be searched, sorted, and otherwise accessed using electronic tools. The Commission proposed to post on the Commission's Web site sample asset lists in formatted electronic spreadsheets and to require sellers to submit the asset appendix in the form and format of the sample electronic asset list spreadsheets.
303. An example of the electronic spreadsheet for the asset appendix with the proposed new columns and column headings was included as appendix B to the NOPR.
304. Commenters generally support the Commission's proposal to require sellers to submit the asset appendix in an electronic spreadsheet format; however, several commenters request clarification or modification of the proposal.
305. We adopt the NOPR proposal to require sellers to submit the asset appendix in an electronic spreadsheet format.
306. EEI apparently misconstrued this proposal and we clarify here that the electronic format requirement for the asset appendix is specifically designed to stop the submission of asset appendices in Word or PDF format and instead require that these be submitted in a workable electronic file format such as Excel. We adopt the NOPR requirements of a “workable electronic spreadsheet,”
If a seller chooses to create its own workable electronic spreadsheet, the file it submits must have
307. Finally, we replace the example appendix found in appendix B to subpart H of part 35 of the Commission's regulations with the appendix B in this Final Rule.
308. The Commission sought comment regarding whether in the future it would be beneficial to develop a comprehensive searchable public database of the information contained in the asset appendix, which would eventually replace the pre-formatted spreadsheet. The Commission noted that such an approach would allow market-based rate sellers to update their asset appendices when circumstances change. The Commission sought comments regarding whether such a database would be useful, how the database might be created, standardized and maintained, and the frequency with which it should be updated. The Commission further sought input on the usefulness of including unique identifiers for the affiliate companies and generation assets in such a database,
309. While APPA/NRECA, Golden Spread, and E.ON support the Commission's proposal to develop a comprehensive, searchable public database of the information contained in the asset appendix,
310. Other commenters raise issues related to maintaining the database's integrity.
311. EPSA also seeks clarification on whether the database would eventually replace the asset appendix, or if both a database and an asset appendix would be required.
312. AEP does not see the need for the Commission to host a comprehensive searchable public database, stating that the information is available through other means and creating the database would impose another reporting obligation on sellers.
313. We will not direct the creation of a comprehensive public database as part of this rulemaking. In the NOPR, we sought industry comment on the usefulness of a potential database and for input on how the database might be created and maintained. While some commenters raise valid concerns about the structure, confidentiality, burden and maintenance of the database, others recognize the potential utility of a well-designed and properly administered database.
314. In Order No. 697, the Commission created a category of market-based rate sellers, Category 1 sellers, that are exempt from the requirement to periodically submit
315. In the NOPR, the Commission proposed to clarify the distinction in determining the seller category status of power marketers and power producers. For purposes of determining seller category status for each region, a power marketer should include all affiliated generation capacity in that region. Power producers only need to include affiliated generation that is located in the same region as the power producer's generation assets. The Commission explained that the reason behind this distinction is that a power marketer with no generation assets in the ground is assumed to have no home market; it is thus assumed to be equally likely to make sales in any region. In contrast, although a power producer has authorization to make sales in other regions, it is assumed that the majority of its sales will be in the region(s) in which it owns generation assets.
316. Thus, the Commission proposed to clarify that a power marketer with no generation assets may qualify as a Category 1 seller in any region where: (1) Its affiliates own or control, in aggregate, 500 MW or less of generation capacity; (2) it is not affiliated with anyone that owns, operates or controls transmission facilities; (3) it is not affiliated with a franchised public utility; and (4) it does not raise other vertical market power issues. The Commission noted that the above is consistent with the Commission's treatment of power marketers since the issuance of Order No. 697.
317. The Commission also proposed to clarify that a power producer may qualify as a Category 1 seller in any region in which the power producer itself owns generation and the power producer and its affiliates own or control, in aggregate, 500 MW of generation capacity or less, as long as the power producer is not affiliated with anyone that owns, operates or controls transmission facilities in that region, is not affiliated with a franchised public utility in that region, and does not raise other vertical market power issues. In addition, unlike power marketers, a power producer may qualify as a Category 1 seller in a region where the power producer itself does not own or control any generation or transmission assets but where it has affiliates that are Category 2 sellers.
318. Therefore, the Commission proposed to revise the regulation at 18 CFR 35.36(a)(2) and clarify that in order to qualify for Category 1 status, a seller must meet
319. EEI recommends that the Commission modify its proposed clarifications regarding Category 1 and Category 2 sellers. EEI encourages the Commission to allow power marketers to demonstrate that their sales from particular capacity are confined to particular regions and thus should be counted accordingly in determining their category status.
320. We adopt the proposed clarifications regarding Category 1 and Category 2 sellers and the corresponding regulatory changes to 18 CFR 35.36(a)(2) as proposed in the NOPR.
321. In response to EEI's comment to allow power marketers to demonstrate that sales from particular capacity are confined to a particular region, the Commission has found that category seller status is based on the region in which generation capacity is owned or controlled by the seller and its affiliates in aggregate rather than where sales are made in an effort to keep the definition and demonstration of a seller's category status simple and straightforward.
322. EEI also proposed that the category seller status designation be based on whether a seller owns or controls uncommitted resources in a region. We reject this proposal as beyond the scope of what was proposed in the NOPR. Moreover, the test for category seller status was intended to be a bright line test that would be easy to administer.
323. In the NOPR, the Commission proposed to require sellers to provide an organizational chart, in addition to the existing requirement
324. The Commission noted that it has seen increasingly complex organizational structures as private equity funds and other financial institutions take ownership positions in generation and utilities.
325. Thus, the Commission proposed to revise the text in section 35.37(a)(2) of the Commission's regulations to add this requirement for purposes of initial applications and updated market power analyses. The Commission also proposed that such organizational chart be required for any notice of change in status involving a change in the ownership structure that was in place the last time the seller made a market-based rate filing with the Commission. Therefore, the Commission proposed to revise the text in section 35.42(c) accordingly.
326. Many commenters oppose the Commission's proposal to require sellers to provide an organizational chart, in addition to written descriptions of their affiliates and corporate structure or upstream ownership, for initial applications for market-based rate authority, updated market power analyses, and notices of change in status reporting new affiliations.
327. Several commenters submit that this proposal would impose a burden on sellers disproportionate to any benefit received, requiring significant investigation into numerous affiliate relationships.
328. EPSA proposes that, if the Commission implements the proposal, the Commission should limit the entities depicted in the organizational chart to include only public utilities subject to the Commission's jurisdiction rather than all affiliates within a seller's corporate structure.
329. If the Commission adopts this proposal, some commenters suggest that the Commission provide further guidance regarding which affiliated entities should be included in the organizational chart.
330. Some commenters assert that if the Commission adopts this proposal, the Commission should allow exemptions for specific filers.
331. If the Commission adopts the organizational chart proposal, some commenters suggest that the Commission allow flexibility for meeting this proposal.
332. We adopt the corporate organizational chart requirement with modifications and clarifications, as discussed below. We disagree with commenters' concerns that filing such charts will impose an undue burden on sellers. The Commission already requires sellers to file organizational charts for filings under FPA section 203, and, as EPSA notes, some companies already have organizational charts for other purposes. Furthermore, as acknowledged by some commenters, the information that the Commission would require in organizational charts does not materially differ from what is currently provided in narrative form in market-based rate filings. Thus, presenting this same information in a graphic format should not be unduly burdensome. Similarly, presenting organizational charts in market-based rate filings, rather than through links to a corporate Web site as proposed by AEP, should not be unduly burdensome.
333. However, in response to commenters' concerns, we provide further guidance regarding the extent to which upstream owners and affiliates need to be included in the corporate organizational charts. First, we find that the terms “energy subsidiaries” and “energy affiliates,” as used in the FPA section 203 context and as originally proposed in the NOPR, are not meaningful in the market-based rate context. Instead, we clarify that instead of “indicating all upstream owners, energy subsidiaries, and energy affiliates” in the organizational chart, as proposed in the NOPR, filers should indicate all affiliates, as defined under section 35.36(a)(9) of the Commission's market-based rate regulations. Second, to minimize burdens on filers and to simplify the charts, we clarify that if an entity is owned by multiple individual investors, such investors may be grouped in the organizational chart as long as they are identified elsewhere in the filing.
334. We caution applicants to examine all upstream ownership information to ensure that all affiliates are captured in the chart. Applicants should not assume that upstream owners are not affiliates of the applicant without looking further up the ownership chain. For example, suppose the applicant (Company A) has four upstream owners (Companies B, C, D, and E) each of which owns 8 percent of the voting shares of A. If Company F owns 100 percent of the voting interests in Companies B, C, D, and E, under the Commission's affiliate definition, Company F indirectly owns 32 percent of Company A and should be listed in the chart as an affiliate of Company A. Furthermore, since Companies A, B, C, D, and E are all under the common control of Company F, Companies B, C, D, and E also are affiliated with Company A under the Commission's definition and should be depicted as such in the organizational chart, even though they own less than 10 percent of the voting interests in Company A. Further, as the Commission clarified in
335. Consistent with our clarifications above, we will revise the regulatory text in § 35.37(a)(2) to clarify that the organizational chart must include affiliates, without any further reference to “upstream owners,” “energy subsidiaries,” or “energy affiliates.” We will also revise the regulatory text in section 35.42(c) of the Commission's regulations to require the submission of an organizational chart that depicts the seller's prior and new affiliations unless the change in status does not affect the seller's affiliations.
336. In the NOPR, the Commission noted that when a corporate family has more than one affiliated seller, it may use a joint tariff. The Commission committed to clarify on its Web site how a corporate family that chooses to submit a joint master corporate tariff should identify its designated filer and what each of the other filers should submit into their respective eTariff databases. This information can be found on the Commission's Web site at
337. EEI appreciates the Commission's recognition that allowing joint filings for corporate families provides economy of effort to companies.
338. There is no opposition to the Commission's NOPR clarification. We reiterate that when a corporate family has more than one affiliated seller, it may use a joint master tariff. Filing instructions for entities wishing to use a joint tariff are available on the Commission's Web site, as stated above.
339. In the NOPR, the Commission noted that it has granted certain entities with market-based rate authority, such as power marketers and independent power producers, waiver of the Commission Uniform System of Accounts requirements, specifically parts 41, 101, and 141 of the Commission's regulations, except sections 141.14 and 141.15. The Commission clarified that any waiver of part 101 granted to a market-based rate seller is limited such that the waiver of the provisions of part 101 that apply to hydropower licensees is
Under [s]ection 14 of the FPA, the Federal government may take over a project upon expiration of the project's licensee, conditioned upon the government's payment to the licensee of the `net investment of the licensee in the project or projects taken.' Section 4(b) requires licensees to file a statement showing the `actual legitimate original cost of construction of such project' to enable the Commission to determine `the actual legitimate cost of and the net investment in' the project. Section 10(d) requires licensees to establish an amortization reserve account that will reflect excess or surplus earnings of their licensed project if such earnings have accumulated in excess of a reasonable rate of return upon the `net investment' in the project during a period beginning after the first twenty years of operations. Pursuant to [s]ection 10(d) of the FPA the amount transferred to the amortization reserve may be used to reduce a licensee's net investment in the project, and if, after expiration of the license, the government takes over the project under [s]ection 14, it will be required to compensate the licensee for its net investment in the project, reduced by the amortization reserve for the project.
340. The Commission further directed market-based rate sellers that own licensed hydropower projects to ensure that their market-based rate tariffs reflect appropriate limitations on any waivers that previously have been granted. Specifically, to the extent that the hydropower licensee has been granted waiver of part 101 as part of its market-based rate authority, the licensee's market-based rate tariff limitations and exemptions section should be revised to provide that the seller has been granted waiver of part 101 of the Commission's regulations with the exception that waiver of the provisions that apply to hydropower licensees has not been granted with respect to licensed hydropower projects. Similarly, to the extent that a hydropower licensee has been granted waiver of part 141 as part of its market-based rate authority, it should ensure that the limitation and exemptions section of its market-based rate tariff specifies that waiver of part 141 has been granted, with the exception of sections 141.14 and 141.15 (which pertain to the filing by hydropower licensees of Form No. 80, Licensed Hydropower Development Recreation Report, and the Annual Conveyance Report).
341. The Commission stated that these market-based rate tariff compliance filings are to be made the next time the hydropower licensee proposes a change to its market-based rate tariff, files a notice of change in status pursuant to 18 CFR 35.42, or submits an updated market power analysis in accordance with 18 CFR 35.37. In addition, going forward, any market-based rate seller requesting waivers of parts 101 and/or 141 should include these limitations in their market-based rate tariffs, regardless of whether they own any licensed hydropower projects. This will ensure that hydropower licensees understand the limitations on parts 101 and 141 waivers. To the extent that the market-based rate seller is not a licensee, these limitations should not have any effect as they only deny waiver of certain provisions affecting licensees. If a market-based rate seller becomes a hydropower licensee after it receives market-based rate authority, it must file revisions to its market-based rate tariff to reflect the limitations in its parts 101 and 141 waivers within 30 days of the effective date of its license.
342. Some commenters oppose the Commission's clarification that hydropower licensees are required to comply with the requirements of the Uniform System of Accounts pursuant to 18 CFR part 101 to the extent necessary to carry out their responsibilities under Part I of the FPA.
343. Further, these commenters contend that requiring licensees to bring their accounts into conformance with the Uniform System of Accounts is not only unnecessary, but also would be costly and burdensome, require substantial work, and impose potential costs associated with hiring new accounting personnel, while yielding no identified benefit. According to commenters, hydropower licensees can already satisfy the statutory requirements in FPA Part I by employing Generally Applicable Accounting Principles.
344. National Hydropower Association (NHA) contends that the regulatory burden imposed on hydropower licensees to conform to the Uniform System of Accounts is disproportionate to the concern underlying the Commission's clarification of hydropower licensees' responsibilities, particularly sections 4(b), 10(d), and 14 of the FPA. According to NHA, the calculation of net investment and amortization reserves only becomes relevant in case of a federal takeover of the project under section 14 of the FPA and during relicensing, if the project is awarded to a competing applicant.
345. We affirm the NOPR clarification that any waiver of part 101 granted to a market-based rate seller is limited such that the waiver of the provisions of part 101 that apply to hydropower licensees is
346. Regarding comments that the Commission's clarification is not only unnecessary, but also would be costly and burdensome, require substantial work, and impose potential costs associated with hiring new accounting personnel, while yielding no identified benefit, we disagree. We find that use of Generally Accepted Accounting Principles will not satisfy the statutory requirements under FPA sections 4(b),
347. We find that a hydropower licensee that sells only at market-based rates may meet its obligations to comply with the Uniform System of Accounts by following General Instruction No. 16 under part 101 of the Commission's regulations.
348. We deny commenters' request that the Commission implement these clarifications prospectively and delay the implementation for at least one year to provide sufficient time to allow affected licensees to bring their accounting ledgers into compliance. We find it is not unduly burdensome for a hydropower licensee that sells only at market-based rates to meet its longstanding obligation to comply with the Uniform System of Accounts by following General Instruction No. 16 under part 101 of the Commission's regulations.
349. Accordingly, as discussed in the NOPR, we will direct market-based rate sellers that own licensed hydropower projects to ensure that their market-based rate tariffs reflect appropriate limitations on any waivers that previously have been granted. Specifically, to the extent that the hydropower licensee has been granted waiver of part 101 as part of its market-based rate authority, the licensee's market-based rate tariff limitations and exemptions section should be revised to provide that the seller has been granted waiver of part 101 of the Commission's regulations with the exception that waiver of the provisions that apply to hydropower licensees has not been granted with respect to licensed hydropower projects. Similarly, to the extent that a hydropower licensee has been granted waiver of part 141 as part of its market-based rate authority, it should ensure that the limitation and exemptions section of its market-based rate tariff specifies that waiver of part 141 has been granted, with the exception of sections 141.14 and 141.15 (which pertain to the filing by hydropower licensees of Form No. 80, Licensed Hydropower Development Recreation Report, and the Annual Conveyance Report).
350. If an existing market-based rate seller becomes a hydropower licensee and the Commission previously accepted the seller's market-based rate tariff with full waivers without the limitations relating to hydropower licensees discussed herein, the seller must file revisions to its market-based rate tariff to reflect the limitations in its parts 101 and 141 waivers within 30 days of the effective date of its hydropower license.
351. In the NOPR, the Commission noted that that section 35.37(a)(1) of the Commission's regulations requires Category 2 sellers to submit a market power analysis according to the regional schedule contained in Order No. 697. The Commission proposed to revise section 35.37(a)(1) so that instead of referring to the schedule contained in Order No. 697, section 35.37(a)(1) would to refer to an updated regional reporting schedule posted on the Commission's Web site.
352. EEI encourages the Commission to confer with the regulated community before making changes in the schedule and map, to ensure that those changes are workable and appropriate.
353. We adopt the NOPR's proposal to revise section 35.37(a)(1) of the Commission's regulations with regard to the regional reporting schedule. The regional reporting schedule and associated map can be found on the Commission's Web site.
354. In the NOPR, the Commission noted that in Order No. 697, as part of the vertical market power analysis, the Commission stated that it would require sellers to make an affirmative statement that they have not erected barriers to entry into the relevant market and will not erect barriers to entry into the relevant market. The Commission further noted that the requirement is codified at section 35.37(e)(4). The Commission explained that although the Commission stated in Order No. 697 that the obligation applies both to the seller and its affiliates,
355. APPA/NRECA and Golden Spread support clarifying that an applicant for market-based rate authority must affirmatively state, on behalf of itself and its affiliates, that they have not and will not erect barriers to entry in the relevant market(s).
356. We adopt the proposal in the NOPR concerning the affirmative statement. No adverse comments were filed with respect to this proposal. As noted above, this obligation already applies both to the seller and its affiliates. However, because many sellers have not mentioned their affiliates when making their affirmative statements, we adopt the proposal to revise the regulations to make it clear that the affirmative statement requirement applies to the seller and its affiliates. The revised regulation will appear at section 35.37(e)(3).
357. Barrick Goldstrike Mines (Barrick) notes that the Commission previously found that “mitigated sellers
358. Barrick further asserts that Order No. 697 should be amended in such a way to allow full optimization of imbalance energy across the broader footprint of CAISO Energy Imbalance Market
359. With respect to Barrick's requests to revisit the Commission's findings in Order No. 697 that “mitigated sellers and their affiliates are prohibited from selling power at market-based rates in the balancing authority area in which the seller is found, or presumed, to have market power” and the definition of “affiliate,” at least in certain cases, we find that they are beyond the scope of this rulemaking. Accordingly, we will not address Barrick's comments in this Final Rule.
360. This section defines certain terms specific to Subpart H and explains the applicability of subpart H.
361. The NOPR proposed to redefine “Category 1 Seller” in paragraph (a)(2) to clarify the distinction in determining the seller category status of power marketers and power producers. Specifically, that for purposes of determining category status, a power marketer should include all affiliated generation capacity in that region, but that a power producer only needs to include affiliated generation that is located in the same region as the power producer's generation assets.
362. The Final Rule adopts the regulatory text changes proposed in the NOPR regarding the definition of Category 1 Seller in paragraph (a)(2).
363. This section describes the market power analysis the Commission employs, as discussed in the preamble, and when sellers must file one. It is intended to identify the key aspects of the analysis.
364. The NOPR proposed to change the reference in paragraph (a)(1) for the location of the regional reporting schedule from Order No. 697 to the Commission's Web site. The NOPR proposed to add a requirement in paragraph (a)(2) that sellers include as part of their updated market power analyses, an organizational chart depicting their current corporate structure, indicating all upstream owners, energy subsidiaries and energy affiliates. The NOPR proposed to revise paragraph (c)(4) to specify that sellers must file their indicative screens in an electronic spreadsheet format. The NOPR proposed to add paragraph (c)(5) to require that sellers use the format provided in appendix A of subpart H of part 35 and, if applicable, file SIL Submittals 1 and 2 in the electronic spreadsheet format provided on the Commission's Web site. The NOPR also proposed to add paragraph (c)(6) to provide that sellers in RTO/ISO markets with Commission-approved market monitoring and mitigation may, in lieu of submitting the indicative screens, include a statement that they are relying on such mitigation to address any potential horizontal market power concerns. The NOPR proposed to remove paragraph (e)(2) to remove the requirement that sellers address sites for generation capacity development as part of their market power analyses and to renumber paragraphs (e)(3) and (e)(4) as paragraphs (e)(2) and (e)(3) respectively and to revise new paragraph (e)(3) to clarify that the vertical market power affirmative statement must be made on behalf of the seller and its affiliates.
365. The Final Rule adopts the regulatory text changes proposed in the NOPR regarding the location of the schedule for updated market power filings in paragraph (a)(1). The Final Rule also adopts the NOPR proposal to revise the language in paragraph (a)(2) to require an organizational chart; however the language varies from that proposed in the NOPR to limit the organizational chart to depicting affiliates as discussed in the Corporate Families discussion above. The Final Rule also adopts the NOPR regulatory text changes to paragraphs (c)(4) and (c)(5) regarding submission of the indicative screens and SIL Submittals 1 and 2 in electronic spreadsheet formats. Consistent with the Horizontal Market Power discussion, the Final Rule does not adopt the NOPR proposal to add a new paragraph allowing sellers in RTO/ISO markets to rely on market monitoring and mitigation in lieu of submitting indicative screens. The Final Rule adopts the NOPR proposal to
366. The NOPR proposed several revisions to the regulation, including a change to paragraph (a)(1) to clarify that the 100 MW reporting threshold is not limited to market previously studied and includes both the relevant market and any first-tier markets. The NOPR proposed a change to paragraph (a)(2)(i) to apply a 100 MW threshold for reporting new affiliations and to include in that threshold long-term firm purchases of capacity and/or energy and to included cumulative increases in the first-tier markets as well as the relevant market. The NOPR also proposed to revise paragraph (c) to require sellers to submit organizational chart unless the change in status does not affect the seller's structure. In addition, the NOPR proposed revisions to paragraph (b) to remove a reference to change in status filings to report acquisition of control of sites for new generation capacity development and to remove paragraphs (d) and (e), which address site control reporting, which is being eliminated as explained in the Notices of Change in Status discussion.
367. The Final Rule adopts the proposed edits to paragraph (a) except as discussed herein. In paragraphs (a)(1) and (a)(2)(i), the language proposed in the NOPR including first-tier markets is not included in accordance with the Notices of Change in Status discussion and the requirement is limited to 100 MW or more change in any
368. Consistent with the Vertical Market Power—Land Acquisition Reporting discussion, the Final Rule adopts the proposals to remove references to reporting new sites for generation capacity development, removing paragraphs (d) and (e) in their entirety and deleting the reference to site reporting from paragraph (b).
369. Finally, the Final Rule adopts the proposed edits to paragraph (c) except as discussed herein. Consistent with the Corporate Organizational Charts discussion, the Final Rule does not include the reference to upstream owners and energy subsidiaries, and requires only that the organizational charts indicate all affiliates.
370. The Office of Management and Budget (OMB) regulations require approval of certain information collection and data retention requirements imposed by agency rules.
371. The Commission is submitting the proposed modifications to its information collections to OMB for review and approval in accordance with section 3507(d) of the Paperwork Reduction Act of 1995.
372. In response to the Commission's proposals regarding changes to the indicative screen reporting requirements, EEI notes that, if the Commission wants sellers to submit the indicative screens in appendix A in formats other than the standard formats, such as Adobe, Excel, or Word, the Commission should acknowledge that requiring the use of more complex formats and new details in appendix A will entail some additional burden on sellers filing the information, at least during the initial round of using such formats.
373. We revise the Information Collection Statement estimates contained in the NOPR because the Commission has made several changes to its NOPR proposal in this Final Rule, which are discussed below.
374. First, we do not adopt in the Final Rule the NOPR proposal to eliminate the requirement in section 35.37
375. Second, we will modify the NOPR's proposal to require sellers to file corporate organizational charts including all upstream owners, energy subsidiaries, and energy affiliates in initial market-based rate applications and related filings. The organizational charts will still be required, but they will be limited to include the seller's affiliates as defined in section 35.36(a)(9) of the Commission's regulations rather than all upstream owners, “energy subsidiaries” and “energy affiliates.” This modification of the NOPR proposal constitutes a small burden decrease from the NOPR. Because the corporate organizational chart filing is similar to that proposed in the NOPR, we are not modifying the estimated public reporting burdens for this proposed reporting requirement in the table below. We believe that the revised burden estimates below are representative of the average burden on filers.
376. Third, we do not adopt the NOPR proposal to clarify that sellers must report behind-the-meter generation in the indicative screens and asset appendices, and have such generation count toward change in status and category status thresholds. These changes represent a small decrease in burden due to the reduction in filings from not including behind-the-meter generation as part of the 100 MW generation threshold to trigger filing a notice of change in status for new affiliations.
377. Fourth, we modify the NOPR's proposed changes to the asset appendix by (1) requiring separate worksheets in the Asset Appendix for long-term PPAs and end notes, (2) adding new columns to the generation asset list for explanatory end note numbers and information regarding capacity ratings, and (3) adding new columns to the
378. In response to EEI's comment that the use of more complex formats for indicative screens will entail additional burden, Commission regulations already require the submission of indicative screens, and the Final Rule adopts the NOPR proposal to require these screens in electronic format. We view this as a
After implementation of the proposed changes,
• Economist: $67.75/hour
• Electric Engineer: $59.62/hour
• Lawyer: $128.02/hour
($67.57 + $59.62 + $128.02) ÷ 3 = $85.07
• Economist: $67.75/hour
• Electric Engineer: $59.62/hour
• Lawyer: $128.02/hour
($67.57 + $59.62 + $128.02)/3 = $85.07
379. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email:
380. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
381. The Regulatory Flexibility Act of 1980 (RFA)
382. The final rule in RM14–14–000 is expected to impose an additional burden on 2,002 entities. Comparison of the applicable entities with FERC's small business data indicates that approximately 1,634, or 82 percent
383. On average, each small entity affected may have a one-time cost of $4,207.19, representing 84,470 hours at $67.57/hour (for economists), $59.62/hour (for electrical engineers), and $128.02/hour (for lawyers). These figures represent the implementation burden of the changes to FERC–919 per the RM14–14–000 Final Rule, as explained above in the information collection statement. Accordingly, the Commission certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. The Commission seeks comment on this certification.
384. In addition to publishing the full text of this document in the
385. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
386. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at
387. This Final Rule is effective January 28, 2016. The Commission has
Electric power rates, Electric utilities, Reporting and recordkeeping requirements.
By the Commission.
In consideration of the foregoing, the Commission amends part 35, chapter I, title 18,
16 U.S.C. 791a–825r, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
(a) * * *
(2)
(i) Is either a wholesale power marketer that controls or is affiliated with 500 MW or less of generation in aggregate per region or a wholesale power producer that owns, controls or is affiliated with 500 MW or less of generation in aggregate in the same region as its generation assets;
(ii) Does not own, operate or control transmission facilities other than limited equipment necessary to connect individual generating facilities to the transmission grid (or has been granted waiver of the requirements of Order No. 888, FERC Stats. & Regs. ¶ 31,036);
(iii) Is not affiliated with anyone that owns, operates or controls transmission facilities in the same region as the Seller's generation assets;
(iv) Is not affiliated with a franchised public utility in the same region as the Seller's generation assets; and
(v) Does not raise other vertical market power issues.
The revisions and additions read as follows:
(a) * * *
(2) When submitting a market power analysis, whether as part of an initial application or an update, a Seller must include an appendix of assets, in the form provided in appendix B of this subpart, and an organizational chart. The organizational chart must depict the Seller's current corporate structure indicating all affiliates.
(c) * * *
(4) When submitting the indicative screens, a Seller must use the format provided in appendix A of this subpart and file the indicative screens in an electronic spreadsheet format. A Seller must include all supporting materials referenced in the indicative screens.
(5) Sellers submitting simultaneous transmission import limit studies must file Submittal 1, and, if applicable, Submittal 2, in the electronic spreadsheet format provided on the Commission's Web site.
(e) * * *
(3) A Seller must ensure that this information is included in the record of each new application for market-based rates and each updated market power analysis. In addition, a Seller is required to make an affirmative statement that it and its affiliates have not erected barriers to entry into the relevant market and will not erect barriers to entry into the relevant market.
The revisions read as follows:
(a) * * *
(1) Ownership or control of generation capacity or long-term firm purchases of capacity and/or energy that results in cumulative net increases (
(2) Affiliation with any entity not disclosed in the application for market-based rate authority that:
(i) Owns or controls generation facilities or has long-term firm purchases of capacity and/or energy that results in cumulative net increases (
(ii) Owns or controls inputs to electric power production;
(iii) Owns, operates or controls transmission facilities; or
(iv) Has a franchised service area.
(c) When submitting a change in status notification regarding a change that impacts the pertinent assets held by a Seller or its affiliates with market-based rate authorization, a Seller must include an appendix of all assets, including the new assets and/or affiliates reported in the change in status, in the form provided in appendix B of this subpart, and an organizational chart. The organizational chart must depict the Seller's prior and new corporate structures indicating all affiliates unless the Seller demonstrates that the change in status does not affect the corporate structure of the Seller's affiliations.
The following appendices will not be published in the Code of Federal Regulations.
Office of Postsecondary Education, Department of Education.
Final regulations.
The Secretary amends the cash management regulations and other sections of the Student Assistance General Provisions regulations issued under the Higher Education Act of 1965, as amended (HEA). These final regulations are intended to ensure that students have convenient access to their title IV, HEA program funds, do not incur unreasonable and uncommon financial account fees on their title IV funds, and are not led to believe they must open a particular financial account to receive their Federal student aid. In addition, the final regulations update other provisions in the cash management regulations and otherwise amend the Student Assistance General Provisions. The final regulations also clarify how previously passed coursework is treated for title IV eligibility purposes and streamline the requirements for converting clock hours to credit hours.
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.
Over the past decade, the student financial products marketplace has shifted and the budgets of postsecondary institutions have become increasingly strained, in part due to declining State funding. These changes have coincided with a proliferation of agreements between postsecondary institutions and financial account providers. Cards offered pursuant to these arrangements, usually in the form of debit or prepaid cards and sometimes cobranded with the institution's logo or combined with student IDs, are marketed as a way for students to receive their title IV
According to these reports, the following practices were found:
• Providers were prioritizing disbursements to their own affiliated accounts over aid recipients' preexisting bank accounts;
• Providers and schools were strongly implying to students that signing up for the college card account was required to receive Federal student aid;
• Private student information unrelated to the financial aid process was given to providers before aid recipients consented to opening accounts;
• Access to the funds on the college card was not always convenient; and
• Aid recipients were charged onerous, confusing, or unavoidable fees in order to access their student aid funds or to otherwise use the account.
These practices indicate that many institutions have shifted costs of administering the title IV, student aid programs from institutions to students. Given that approximately nine million students attend schools with these agreements, that approximately $25 billion dollars in Pell Grant and Direct Loan program funds are disbursed to undergraduates at these institutions every year, that students are a captive audience subject to marketing from their institutions, that the college card market is expanding, and because there have been numerous concerns raised by existing practices, we believe regulatory action governing the disbursement of title IV, student aid is warranted.
In addition, we include in these regulations a number of minor changes that reflect updated Office of Management and Budget (OMB) guidance for Federal awards, clarify some provisions to further safeguard title IV funds, and remove references to programs that are no longer authorized.
Finally, we address in the regulations two issues unrelated to cash management—repeat coursework and clock-to-credit-hour conversion—that were identified by the higher education community as requiring review. We believe these regulatory changes will result in more equitable treatment of student aid recipients and simplify title IV requirements in these areas.
The NPRM contained background information and our reasons for proposing the particular regulations. The final regulations contain changes from the NPRM, which are fully explained in the
The regulations—
• Explicitly reserve the Secretary's right to establish a method for directly paying credit balances to student aid recipients;
• Establish two different types of arrangements between institutions and financial account providers: “tier one (T1) arrangements” and “tier two (T2) arrangements”;
• Define a “T1 arrangement” as an arrangement between an institution and a third-party servicer, under which the servicer (1) performs one or more of the functions associated with processing direct payments of title IV funds on behalf of the institution, and (2) offers one or more financial accounts under
• Define a “T2 arrangement” as an arrangement between an institution and a financial institution or entity that offers financial accounts through a financial institution under which financial accounts are offered and marketed directly to students. However, if an institution documents that, in one or more of the three recently completed award years, no students received credit balances at the institution, the requirements associated with T2 arrangements do not apply. If, for the three most recently completed award years, the institution documents that on average fewer than 500 students and less than five percent of its enrollment received credit balances then only certain requirements associated with T2 arrangements apply;
• Require institutions that have T1 or T2 arrangements to establish a student choice process that: prohibits an institution from requiring students to open an account into which their credit balances must be deposited; requires an institution to provide a list of account options from which a student may choose to receive credit balance funds electronically, where each option is presented in a neutral manner and the student's preexisting bank account is listed as the first and most prominent option with no account preselected; and ensures electronic payments made to a student's preexisting account are initiated in a manner as timely as, and no more onerous than, payments made to an account made available pursuant to a T1 or T2 arrangement;
• Require that any personally identifiable information shared with a financial account provider as a result of a T1 arrangement before a student makes a selection of that provider (1) does not include information about the student other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37, with the exception of a unique student identifier generated by the institution (that does not include a Social Security number, in whole or in part), the disbursement amount, a password, PIN code, or other shared secret provided by the institution that is used to identify the student, and any additional items specified by the Secretary in a
• Require that the institution obtain the student's consent to open an account under a T1 arrangement before the institution or account provider sends an access device to the student or validates an access device that is also used for institutional purposes, enabling the student to use the device to access a financial account;
• Require that the institution or financial account provider obtain consent from the student to open an account under a T2 arrangement before (1) the institution or third-party servicer provides any personally identifiable information about that student to the financial account provider or its agents, other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37 and (2) the institution or account provider sends an access device to the student or validates an access device that is also used for institutional purposes, enabling the student to use the device to access a financial account;
• Mitigate fees incurred by student aid recipients by requiring reasonable access to surcharge-free automated teller machines (ATMs), and, for accounts offered under a T1 arrangement, by prohibiting both point-of-sale (POS) fees and overdraft fees charged to student account holders, and by providing students with the ability to conveniently access title IV, HEA program funds via domestic withdrawals and transfers in part and in full up to the account balance, without charge, at any time following the date that such title IV, HEA program funds are deposited or transferred to the financial account;
• Require that contracts governing T1 and T2 arrangements are conspicuously and publicly disclosed;
• Require that cost information related to T1 arrangements is conspicuously and publicly disclosed;
• Require that cost information related to T2 arrangements is conspicuously and publicly disclosed when on average over three years five percent or more of the total number of students enrolled at the institution received a title IV credit balance or the average number of credit balance recipients for the three most recently completed award years is 500 or more;
• Require that institutions that have T1 arrangements establish and evaluate the contracts governing those arrangements in light of the best financial interests of students; and
• Require that where a T2 arrangement exists and where either on average over three years five percent or more of the total number of students enrolled at the institution received a title IV credit balance, or the average number of credit balance recipients for the three most recently completed award years is 500 or more, the institution establish and evaluate the contract governing the arrangement in light of the best financial interests of students.
The regulations also—
• Allow an institution offering term-based programs to count, for enrollment status purposes, courses a student is retaking that the student previously passed, up to one repetition per course, including when a student is retaking a previously passed course due to the student failing other coursework, and
• Streamline the requirements governing clock-to-credit-hour conversion by removing the provisions under which a State or Federal approval or licensure action could cause a program to be measured in clock hours.
Many other commenters had concerns about the regulations or suggestions for how to improve them. These suggestions are discussed in detail in the remaining sections of this preamble.
Other commenters argued that it would be counterproductive for the Department to regulate in this area. One commenter asserted that the fees that students are paying are already lower than the fees they would be charged for a standard bank account. Other commenters argued that providers of both T1 and T2 arrangements would be forced to exit the marketplace, leaving institutions with limited options for delivering title IV credit balances. Another commenter stated that institutions would choose not to renew contracts with account providers. One commenter noted that if this happens, students may be pushed towards higher-fee products. Other commenters contended that the costs of compliance would force institutions to raise tuition. One commenter suggested that the Department assist institutions with the cost of compliance.
We disagree with the commenter who stated that fees under T1 and T2 arrangements are lower than the fees students would encounter in traditional banking relationships. As stated in the NPRM, there is significant evidence that students are incurring unreasonably high fees, particularly, although not exclusively, under T1 arrangements.
We also disagree with commenters who expressed concerns that the new requirements will drive account providers from the marketplace, to the disadvantage of both institutions and students. We note that account providers are still permitted to charge the institution whatever costs the two parties agree to, we have simply limited the amount and types of fees that are charged to title IV recipients (and also note that certain fees, including monthly maintenance fees, can still be passed on to offset costs). In addition, we believe that account providers recognize the long-term value in establishing relationships with students who may, in the future, require other products and services offered by their financial institutions. Because these more transparent and commonplace fees will be allowable under the regulations and because of the future opportunities created by establishing a banking relationship with students, we do not foresee a situation in which account providers will exit the market and students will be forced to choose among options that include even higher fees. Because third-party servicers will still be able to offer savings to institutions, we do not believe that institutions will choose to abandon their providers.
We also note that schools are responsible for the costs of participating in the title IV programs and are required to ensure that students receive the full balance of title IV funds to which they are entitled, without additional financial assistance from the Department.
Several commenters questioned our legal authority to promulgate these regulations, arguing that the Department lacks the legal authority to regulate banks and financial accounts.
Commenters further argued that the Department was acting outside its statutory authority in regulating T2 arrangements, because the bank accounts under those arrangements fall within the purview of other government agencies and not within the authority of the Department under the HEA. Instead, the commenters believed that the Department should limit its regulations to institutions. These commenters also pointed to section 492(a)(1) of the HEA, which states that for purposes of negotiated rulemaking, the Department must consult with “representatives of the groups involved in student financial assistance programs under this title, such as students, legal assistance organizations that represent students, institutions of higher education, State student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, and collection agencies.” The commenters argued that because banks are not among those groups enumerated in this list, the Department does not have authority to regulate them.
Another commenter argued that the proposed regulations impermissibly expanded the definition of “disbursement,” and that the HEA does not authorize the Department to expand the definition of “disbursement services.”
Another commenter argued that the proposed regulations violate the First Amendment. Specifically, the commenter argued that by requiring institutions to list a student's preexisting bank account as the first and most prominent option, the Department was depriving institutions that believe that a student's preexisting account is not in the student's best interests of the right to more prominently display another account. The commenter argued that a less restrictive means of achieving the Department's goal would be to require that all account options are listed neutrally and with objective information.
We disagree with the commenters who argued that these regulations are outside of our purview under title IV of the HEA. The Department is responsible for overseeing Federal student aid, which annually disburses billions of dollars intended to benefit students, to ensure that the program operates as effectively and efficiently as possible. Multiple statutory provisions vest the Department with broad rulemaking authority to effectuate the purposes of the program.
We have consistently interpreted the HEA as authorizing regulation of the matters addressed in the regulations, including in the 2007 cash management regulations prohibiting account-opening fees, requiring reasonable free ATM access, and requiring prior consent from a student before opening a financial account, and the 1994 regulations relating to third-party servicers.
Furthermore, we disagree that section 492(a)(1) of the HEA provides evidence that we are acting outside our statutory authority; on the contrary, we believe that section further supports our authority. Section 492(a)(1) provides a list of the groups “involved” in the title IV programs, “such as” lenders, secondary markets, and collection agencies. The term “such as” signifies that the list is illustrative, rather than comprehensive; indeed, the Department has previously included several other types of representative groups in negotiated rulemaking. The rulemaking that led to these final regulations included banking sector representatives who provided helpful expertise in improving the regulations we proposed. In addition, the term “involved” denotes Congress's recognition that the Department's regulation of institutions would necessarily impact groups that are not directly regulated, as is the case here. Finally, lenders, secondary markets, and collection agencies are certainly entities that are directly regulated by other government entities, yet are impacted by the Department's regulation of institutions and the title IV programs, similar to financial account providers in these regulations. We are regulating the disbursement process and institutions (and their servicers) that are authorized to disburse title IV funds under the HEA.
We also disagree with the commenter who argued that we do not have the authority to clarify the definition of disbursement services. In section 401(e) of the HEA, regarding Pell Grants, Congress directed that “[p]ayments under this section shall be made in accordance with regulations promulgated by the Secretary for such purpose, in such manner as will best accomplish the purpose of this section.” This section further states that “[a]ny disbursement allowed to be made by crediting the student's account shall be limited to tuition and fees and, in the case of institutionally owned housing, room and board. . . .” Under section 455(a)(1) of the HEA, Congress directed the Secretary to prescribe such regulations as may be necessary to carry out the purposes of the Direct Loan program. This includes regulations applicable to third-party servicers and for the assessment against such servicers of liabilities for violations of the program regulations, to establish minimum standards with respect to sound management and accountability of the Direct Loan programs. Section 487(c)(1)(B) of the HEA provides that the Secretary “shall prescribe such regulations as may be necessary to provide for” reasonable standards of financial responsibility, and appropriate institutional administrative capability to administer the title IV programs, in matters not governed by specific program provisions, “including any matter the Secretary deems necessary to the sound administration of the financial aid programs.” Third-party servicers are likewise by statute subject to the Department's oversight, including under HEA sections 481(c) and 487(c)(1)(C), (H), and (I) of the HEA.
Finally, we disagree with the commenter who argued that the proposed regulations violate the First Amendment. The regulations do not require an institution to endorse a particular banking product as a vehicle for title IV credit balance funds—in fact, the regulations prohibit institutions from expressly stating or implying that a particular account is required to receive their funds. We included this limitation to counteract the practices employed by some financial account providers that were leading title IV recipients to believe that a particular account was required. The provision requiring that the student be given a neutral list of accounts affords the student the opportunity to select an account that is the best fit for that individual. The requirement that a student's preexisting account be listed first and most prominently, rather than endorsing that option, simply ensures that students can easily locate and select the option to receive their funds via an account they have already chosen without confusion or additional steps. As we described in more detail in the NPRM,
Commenters contended that the existence of these laws demonstrates a congressional intent to exclude the Department from regulating in this area, and that the Department lacks the expertise to do so. One commenter also alleged that the Department issued the proposed regulations based only on information from consumer advocacy groups and without consulting banking regulators.
We recognize that there are numerous laws, regulations, and government entities that govern the banking sector and we have specifically limited the reach of the regulations where there might have been conflict or overlap (for example, by not requiring a duplicative disclosure of account terms already required under banking regulations when a student has already selected an account outside the student choice menu). We wish to make clear that these regulations govern institutions and the arrangements they voluntarily enter into that directly affect title IV disbursements, recipients, and taxpayer funds authorized under the HEA.
The commenters did not identify language in any law or regulation administered by another Federal agency that conflicts with the regulations, and neither have we in conducting our review or consulting with other agencies, including the Consumer Financial Protection Bureau (CFPB). Congress entrusted the Department with the responsibility for protecting the integrity of the title IV, HEA programs, and that is the purpose these regulations serve.
We also disagree with the commenter who stated that the Department did not seek out the expertise of banking regulators. As stated in the NPRM, the Department “consulted Federal banking regulators at FDIC, [the Office of the Comptroller of the Currency] OCC, and the Bureau of the Fiscal Service at the United States Department of the Treasury (Treasury Department), and CFPB, for help in understanding Federal banking regulations and the Federal bank regulatory framework” while developing the proposed regulations.
One commenter questioned the validity of the reports underlying the justification for the proposed regulations. This commenter noted that the Office of the Inspector General (OIG) only studied four schools, just one of which had a T2 arrangement, and that no issues were found regarding the T2 arrangement. This commenter also contended that the Government Accountability Office (GAO) stated that the practices it uncovered already violated current regulations and consumer protection laws.
We also disagree with the commenter who questioned the Department's reliance on an OIG report. Although the OIG reviewed the practices of only four schools, those schools collectively represent 158,000 enrolled students and 596.6 million title IV dollars in total.
We also disagree that the GAO only found violations of current consumer protection laws and regulations. For example, the GAO specifically recommended several corrective actions for the Secretary to undertake, including developing requirements for distributing objective and neutral information to students and parents.
Executive Order 13563 seeks, where feasible and in accordance with law, to promote participation and input by and from the public and interested stakeholders in general notice and comment rulemaking that is conducted pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553. The APA, in contrast to title IV, does not contemplate proceedings that include negotiated rulemaking—extensive additional participatory proceedings that are generally required by title IV and were in fact conducted as part of this rulemaking. Those negotiations, preceded by regional public hearings, provided opportunities for public participation and stakeholder input far in excess of 60 days. The purposes of the Executive order have been more than met, and a longer comment period would have been neither feasible, consistent with the master calendar provision, nor in the public interest.
We also note that we directly responded to each of the commenters who requested an extension of the comment period with a message similar in substance to the preceding discussion. We sent these responses as quickly as was practicable to provide notice to these commenters that we would not be extending the comment period and to give them sufficient time to submit substantive comments on the proposed regulations prior to the close of the comment period.
However, one commenter also asked that we include a clear definition of “third-party servicer” in the regulations, stating that it was unclear without such a definition whether certain banking activities could cause a financial institution to become a T1 entity.
Finally, for a more thorough discussion regarding what types of activities would trigger the T1 requirements, please see the
One of the commenters argued that a credit balance does not occur when an institution posts on a student's ledger account, as an “anticipated disbursement,” the amount of title IV, HEA program funds that the student is expected to receive. The commenter asserted that at the time the institution submits a reimbursement request such postings are merely transactions on student ledger accounts pending the Department's review and subsequent release of the funds associated with the posted amounts. The commenter argued that without a requirement on the Department to process reimbursement requests in a timely manner, institutions will have to wait for the requested funds through a process than can be arduous and riddled with delays, citing instances where reimbursement requests were delayed for 45 to 60 days because the analysts assigned by the Department to review those requests were out of the office or assigned to other projects. The commenter stated that these delays are further exacerbated by an administrative process under which the Department allows an institution to submit only one reimbursement request every 30 days, which further delays the release of title IV, HEA program funds to the institution to cover a student's direct cost of tuition, books, and fees. However, the commenter believed this proposal was reasonable for an institution placed on HCM1 because under that payment method the institution is not dependent on the Department to act timely—it controls the timing of its cash requests. Finally, some commenters stated that the HCM requirements were not clearly articulated in the proposed regulations, and questioned whether the requirement to first pay credit balances applied to an institution placed on HCM1. The commenters suggested that the Department only require institutions placed in HCM2 to pay credit balances before seeking reimbursement.
Another commenter noted that guidance published in the 2014–15 FSA Handbook already provides that an institution placed on reimbursement must first pay required credit balances before it submits a reimbursement request, but questioned why the Department extended that provision in the NPRM to apply to an institution placed on heightened cash monitoring. This commenter, and others, argued that the Department should consider the nature of the compliance concerns that trigger whether an institution is placed on reimbursement or HCM. For example, where there are serious concerns about an institution's ability to
Under the circumstance where administrative capability is not at issue, the commenters questioned why the Department proposed to require the institution, which may be operating at lean margins at the beginning of a payment period, to “front” additional funds to pay credit balances to students that may include significant amounts for student housing and other living expenses. Similarly, another commenter believed that an institution would be penalized by having to act as a private lender of their own funds to students to meet the proposed requirement to pay credit balances before seeking funds from the Department. The commenter suggested regulatory language that would allow the institution to pay credit balances upon receiving funds from the Department. Alternatively, the commenter suggested changing the definition of disbursement for an institution placed on HCM or reimbursement to stipulate that funds requested for non-direct costs that would generate a credit balance are considered disbursed after the institution credits the student's account and receives the funds from the Department.
One commenter argued that requiring the institution to pay credit balances with institutional funds would push it into a temporary cash-flow position under which the institution would shoulder the costs of students' decisions about how much to borrow above the cost of tuition and fees, particularly where those decisions are beyond the control of the institution. The commenter stated that under the gainful employment regulations, the Department does not hold an institution accountable for costs that it does not control and should therefore refrain from placing undue financial strain on an institution that stems from decisions made by students. Moreover, because students may add or drop classes early in a payment period, students may move from one category to the other, introducing additional burden. For these reasons, the commenter suggested that an institution placed on HCM should have the option of (1) paying credit balances before seeking reimbursement, or (2) putting in escrow an amount equal to the expected credit balances and subsequently requesting funds prior to paying those credit balances.
One commenter stated that if the intent of the proposed regulations is to require an institution placed on HCM1 to first make credit balance payments, the commenter suggested that the Department explicitly require that as soon as an HCM1 institution initiates an EFT to the student's account, it may immediately request the funds from the Department and that those funds will be available within the same 24–48 hours timeframe that is currently in place.
A commenter questioned whether the Department intended to require an institution to credit all of a student's title IV, program funds at once, thereby creating a credit balance, or prohibit the institution from submitting a reimbursement request that includes a credit balance that has not been paid. The commenter provided the following example: a student is due to receive $15,000 in title IV program funds and institutional charges are $10,000. Can the institution credit just $10,000, get reimbursed, then credit or directly pay the other $5,000, and then get reimbursed for that, or must the institution credit all $15,000 and pay out the $5,000 before it can get any funds back in reimbursement? Along the same lines, another commenter argued that the proposed regulations present a significant administrative burden for an institution placed on HCM1 because the institution would need to seek payment from the Department separately for two categories of students—those who are expected to receive a credit balance and those who are not.
A commenter requested the Department to provide examples of documentation that may be considered appropriate proof that an institution paid credit balances prior to seeking reimbursement, and to outline the steps necessary for the institution to be removed from the HCM and reimbursement payment methods.
With regard to payment methods, under section 401(a)(1) of the HEA and § 668.162(a), the Secretary has the sole discretion to determine whether to provide title IV, HEA program funds to an institution in advance or by way of reimbursement. The Department places an institution on reimbursement or HCM for compliance, financial, or other issues the Department believes necessitate a higher level of scrutiny. In general, these issues relate directly to the compliance history of the institution or its failure to satisfy financial standards that serve as proxy for the institution's ability to (1) provide the services described in its official publications, (2) administer properly the tile IV, HEA programs in which it participates, and (3) meet all of its financial obligations. Requiring institutions to pay credit balances prior to obtaining funds from the Department is consistent with that higher level of scrutiny.
To provide the reader a more complete primer, under § 668.164(a), a disbursement of title IV, HEA program funds occurs on the date that the institution credits the student's ledger account or pays the student or parent directly with (1) funds its receives from the Secretary, or (2) institutional funds used in advance of receiving title IV, HEA program funds. With regard to crediting a student's ledger account, we clarified in the preamble to the NPRM published on September 23, 1996 (61 FR 49878) and in the preamble to the final regulations published on November 29, 1996 (61 FR 60589) that a “credit memo” is not a disbursement—it merely represents an entry made by the institution, noting the type and amount of the title IV, HEA program awards the student qualifies to receive, for the purpose of generating invoices or bills
With this background in mind, the comment that transactions on the student's ledger account are merely anticipated disbursements pending review by the Department of a reimbursement request is, at best, confusing. If the postings of anticipated disbursements are credit memos, then an institution placed on reimbursement or HCM cannot submit a reimbursement or cash request because it has not properly made disbursements to eligible students. If the postings represent actual disbursements, then regardless of any delays or administrative processes, under current and past regulations the institution is obligated to pay any credit balances due to students regardless of when the institution received funds to make those payments. With regard to comments about processing reimbursement requests timely, the Department takes care to assign adequate staff, but minor delays will occur from time to time. We note that the vast majority of delays in approving reimbursement requests occur because institutions do not provide the requested documentation or acceptable documentation.
With regard to the comments that the Department should distinguish between the alternate methods of payment (
With respect to the comments that an institution would have to “front” institutional funds to students, that has always been and continues to be the nature of the alternate payment methods. As previously noted, in the ordinary course, an institution is placed on an alternate payment method based on concerns about its financial capacity or ability to properly administer the title IV, HEA programs. Requiring that the student beneficiaries are protected under these circumstances is consistent with the purpose behind the alternate methods of payment. In addition, we do not believe it is appropriate to change the disbursement process, such as putting credit balances in escrow or altering when funds are considered disbursed, to accommodate institutions with compliance issues.
With respect to the comment that the Department does not hold an institution accountable under the gainful employment regulations for costs it does not control, we note that a student's loan debt is capped at the total amount of tuition, fees, books, supplies, and equipment in determining the debt to earnings (D/E) rate of a program. So, to the extent that the student borrows funds in excess of that amount to pay for living costs, the excess funds are not counted in calculating the D/E rate, but all of the student's loan funds are counted in calculating the median loan debt of the program that is used for disclosure purposes. In any event, capping loan debt for the purpose of calculating a performance metric has no bearing on paying credit balances to students. Regardless of whether an institution has or exercises control of the amount of title IV, HEA program funds the student elects to borrow, the institution is responsible for disbursing the awards, including making credit payments to those students.
In response to the comment that the Department explicitly allow an institution on HCM1 institution to request funds immediately after it initiates an EFT to the student's account, we note that under § 668.164(a) an institution makes a disbursement on the date it credits a student's ledger account or pays the student directly. As provided in § 668.164(d), an institution pays a student directly on the date it initiates an EFT to the student's financial account. So, the regulations already provide that as soon as an institution on HCM1 makes a disbursement, it may request funds from the Department.
In response to the comment about whether an institution must credit the student's account with all the funds the student is eligible to receive for a payment period, it depends. For example, if the institution determines at or before the time it submits a reimbursement or cash request that a student is eligible for a Federal Pell Grant but not yet eligible for a Direct Loan (either because the student has not signed a master promissory note or for some other reason), the institution may include the student on that reimbursement or cash request. When the student establishes eligibility for the Direct Loan, the institution is required to credit the student's account with the loan funds and pay any resulting credit balance before including that student on a subsequent reimbursement or cash request. In most cases, however, the institution will have determined before submitting a reimbursement or cash request that the student was eligible to receive all of his or her awards for a payment period and therefore the amount of all of those awards will have to be credited, in full, to the student's ledger account and the institution will have to pay any resulting credit balance before including the student on a reimbursement or cash request.
With respect to the request that the Department provide examples of the documentation needed to prove that an institution paid credit balances and outline the steps necessary for an institution to be removed from the HCM and reimbursement payment methods, we believe that both of these issues are best addressed administratively on a case-by-case basis depending on how the payments were made or the steps than an institution takes to correct its financial or compliance issues.
One commenter noted than an institution may have a “sub” account for title IV, HEA program funds within its operating account and asked whether this arrangement was acceptable or whether the institution needed to maintain title IV funds in a completely different bank account with no other operating funds and insured at the FDIC limit of $250,000. Similarly, another commenter asked the Department to clarify the insurance requirement because most institutions maintain title IV funds in accounts with balances that exceed FDIC or NCUA insurance limits.
Another commenter asked whether an institution had to disburse title IV, HEA program funds from the same account that the funds were originally deposited into, and, if not, whether the institution could sweep the funds in the account from which they are disbursed.
Another commenter stated that nightly sweeps are a standard practice for large organizations and the commenter is not aware of any losses
In response to whether an institution must use the same account for depositing and disbursing title IV, HEA program funds, the institution may choose to use the same depository account or different accounts (
With regard to the commenter who stated no losses have occurred on title IV funds held in secure investment accounts, we reiterate our position that, given the $500 limit on retaining interest earnings, there is no point in placing Federal funds at risk. About the comment regarding the declining importance of maintaining Federal funds in investment accounts, we assume the commenter is referring to the wind-down of the Federal Perkins Loan Program (see Dear Colleague Letter GEN–15–03). Previously, an institution could maintain its Perkins Loan Fund in a secure investment account and any interest earned would become part of the Fund and available to the institution to make Perkins Loans to students. Now that the statutory authority for institutions to make Perkins Loans has ended, there is no need for investment accounts.
Similarly, another commenter opined that the proposed regulations would apply to nearly all servicers since virtually all of them perform activities that could be characterized as “leading to or supporting” disbursements. The commenter stated that the function of confirming the enrollment and eligibility status for each student for whom a disbursement is ordered requires review of original source records and information created and maintained by the institution, a process which can entail a considerable amount of time. Although the commenter acknowledged that the Department indicated in the preamble to the NPRM that an institution and a servicer could establish a process under which the servicer periodically affirms that the institution confirmed student eligibility at the of disbursement, the commenter argued that the language in proposed § 668.164(b)(3) appeared to impose a duty on the servicers themselves to confirm enrollment and eligibility status. In addition, the commenter argued that the process discussed in the preamble was ambiguous, with many unaddressed factors including the frequency of servicer reviews, the percentage of files that need to be sampled, the method of selecting files, the level of error that should be cause for concern, and the course of action that should be taken if that error level is detected.
The commenter also inferred that third-party servicers who perform activities leading to or supporting a disbursement will be required to calculate the return of title IV funds for those students who withdraw prior to completing a payment period for which a disbursement is made. The commenter argued this proposal effectively redefines when a servicer is considered to be a servicer who “disburses funds” for purposes of 34 CFR 668.25(c)(4). Moreover, the commenter was concerned that if a servicer is considered to have a separate and independent duty to confirm enrollment and eligibility under § 668.164(b)(3), the servicer would be liable under 34 CFR 668.25(c)(3) for paying those liabilities in the event the institution closed. In addition, the commenter opined that the HEA does not authorize the Secretary to impose on servicers, through an expansive definition of disbursement, title IV functions and obligations of an institution that the servicer has not agreed to assume under its contractual relationship with that institution.
The commenter lastly opined that it would be inconsistent to treat a software provider as a third-party servicer if the provider used student aid information from its software product to perform COD reporting, reconciliations, or other business functions, but not treat as a third-party servicer a software provider whose product performs the same functions, including activities that lead to or support a disbursement, that are carried out by an institution. Along these lines, the commenter concluded that third-party servicers and software providers that perform title IV functions on behalf of institutions would potentially be jointly and severally liable for title IV errors, but a software provider whose product is used solely by an institution would not, even though that product performs functions that lead to or support disbursements. For these reasons, the commenter concluded that the proposed regulations likely will preclude many institutions from having access to the expertise and services provided by third-party servicers and software service providers and thereby will result in a higher incidence of title IV errors. In addition, the commenter argued that the proposed regulation likely will put some third-party servicers, software service providers, and institutions out of business.
Another commenter noted that organizations are considered third-party servicers if they deliver title IV credit balances, but opined that the cash management regulations appear to be written for a very small subset of servicers who have complete access to all award and billing information, enabling them to make title IV eligibility determinations and consequently control the disbursement process. The commenter stated that most third-party servicers participate in only a few steps of the overall disbursement process and have very little insight or influence on the process of awarding financial aid. These third-party servicers are not involved in determining the eligibility of students or the corresponding amounts to be disbursed. The commenter was concerned that unless the proposed rule is amended, the responsibility and potential liability of a service provider could far outweigh any reasonable charges for disbursement services, and suggested that the Department clarify the various types of service providers and the degree of responsibility and liability associated with each type.
In situations like those described in the NPRM, where a third-party servicer determines the type and amount of title IV, HEA program awards that students are eligible to receive, requests title IV funds from the Department for those students, or accounts for those funds in reports and data submissions to the Department, the servicer has a fiduciary duty to ensure that disbursements are made only to eligible students for the correct amounts. Otherwise, improper disbursements may be made to students that in turn affect the accuracy of the institution's fiscal records and data
We disagree with the assertion made by the commenters that an institution is solely responsible for disbursement errors simply because the institution makes an entry crediting a student's ledger account. As a practical matter, where a third-party servicer is engaged to determine the type and amount of title IV, HEA program funds that a student is eligible to receive, the institution may reasonably rely on that information in crediting the student's ledger account. Moreover, disbursing funds is a process that begins with determining the awards that a student is eligible to receive and culminates in making payments of those awards to the student. So, the act of crediting the student's ledger account is just part of that process—it simply identifies the date on which the student receives the benefit of title IV, HEA program funds.
With regard to the concerns raised by the commenters that requiring a third-party servicer to confirm eligibility at the time of disbursement would be costly, cause delays, and duplicate the work of the institution, we believe those concerns are overstated. As discussed more fully in Volume 4, Chapter 2 of the FSA Handbook,
As we explained in the preamble to the NPRM (80 FR 28495), the institution and its third-party servicer may establish a process under which the institution confirms eligibility and the servicer verifies periodically that the confirmations were made in accordance with that process. With regard to the comments that the Department should specify the requirements or procedures used under these processes, we do not believe that is necessary—the institution and the servicer should be sufficiently motivated to implement credible processes because they are jointly responsible and jointly liable.
With regard to comments that the proposed regulations contradict the existing provisions in § 668.25(c)(4), the Department respectfully disagrees. As discussed previously in this section and in the NPRM, the language holding an institution and its third-party servicer responsible for confirming a student's eligibility is not a new policy or a change in policy—it merely emphasizes current requirements and reiterates institutional and servicer responsibilities.
In response to the comment about whether software providers or the use of their products are treated in the same way as third-party servicers, we would make that determination on a case-by-case basis depending on the how the software products are used and the role of the software provider in performing title IV functions.
With regard to the comments that the proposed regulations require servicers who perform activities leading to or supporting a disbursement to also calculate the return of Title IV funds for students who withdraw, that responsibility already exists in 34 CFR 668.25(c)(4)(ii). Changes to that regulation are beyond the scope of these regulations.
In response to the suggestion that the Department clarify the various types of service providers and the degree of responsibility and liability associated with each type, doing so is beyond the scope of these regulations. However, a third-party servicer is not subject to the provisions for confirming eligibility under § 668.164(b)(4) if, for example, the servicer is engaged only to deliver credit balance payments to students, or only to provide exit counseling to student loan borrowers.
Several commenters stated that these disclosures were redundant and unnecessary. Some of the commenters cited section 133 of the HEA and the Department's Dear Colleague Letters GEN 08–12 and GEN 10–09 that describe the provisions for textbook disclosures, and noted that, according to these sources, institutions are required to comply with the textbook disclosure requirements even if the textbooks are included as part of the tuition and fees. A few commenters believed the proposed disclosure requirements violate section 133(i) of the HEA, which prohibits the Secretary from regulating textbook disclosures.
In response to our request for comment about how and the frequency with which an institution should disclose the costs of books and supplies that are included as part of tuition and fees, one commenter recommended that the disclosures be made at the time of enrollment and then again at the beginning of each payment period.
Another commenter stated that if these disclosures would be most useful when a student is deciding whether to contract for the program of study, the disclosures should be made prior to a student entering into a financial obligation with the institution for enrolling in a program of study. Further, if the costs of books and supplies are included as part of tuition and fees for all students in a program, the commenter recommended that charges for those materials should be listed in an offer of admission and financial aid, so that students are able to make enrollment decisions that include all mandatory costs.
One commenter argued that there are no effective ramifications of the disclosure (
Another commenter agreed with the Department's concerns regarding institutions artificially inflating the cost of books and supplies, but did not believe that such disclosures are warranted under the statute, and doubted that they would actually address the Department's concerns. The commenter contended that the disclosure provision would be potentially time-consuming and expensive to implement, and confusing or meaningless to students.
A commenter supported the disclosures arguing that the cost of books and supplies should be listed as specific line items on the bill or invoice sent to the student, along with the explanation of why those materials are required, so the student can make appropriate financial aid decisions.
A few commenters did not find compelling or relevant the Department's rationale for initially proposing that institutions may not include books and supplies as part of tuition and fees, and they stated that the attorneys present at the negotiated rulemaking sessions submitted documents that did not include any findings of institutions charging inflated prices. Although there was a report submitted at a Department hearing concerning books and supplies, the concerns raised in that report had more to do with manipulating credit balances to coerce students to buy books directly from the institution rather than the issues raised by the Department in the NPRM. In addition, the commenters stated that the Department's regulatory intent was not clear, with one commenter providing an example where an institution includes as part of tuition and fees the cost of a new hardbound textbook under an arrangement where it negotiated a discount in the student price of that textbook from $400 to $100. In this case, the commenter asked whether the Department would allow that arrangement as in the best financial interest of the student or disallow the arrangement because the textbook is nevertheless available in the marketplace.
The same commenters took exception to the Department's position in the preamble to the NPRM that the costs of attendance provisions in section 472 of the HEA treat books and supplies as separate from tuition and fees. One commenter argued that under the plain meaning of the statute, institutions have the sole discretion to determine what constitutes tuition and fees, pointing to the provision in section 472(1) of the HEA that states that tuition and fees may include the costs for rental or purchase of “any materials” or “supplies.” The commenter opined that these terms are broad enough to include learning materials like textbooks and digital learning platforms. Where tuition and fees do not include the costs of materials and supplies, the cost of attendance also includes an allowance for books, supplies, transportation, and other expenses under section 472(2) of the HEA. The commenters concluded that instead of providing the Department with authority to limit the institutions' ability to include books and supplies as part of tuition and fees, section 472 of the HEA appears to provide institutions with authority to do just that—
Some commenters argued that using title IV funds to pay for books and supplies included as part of tuition and fees benefits students in two ways. First, it ensures that students are able to have all the required learning materials in their possession on the first day of class, which educators agree is an important element in overall student success. Second, it often provides students with substantial discounts, because, by including books and supplies as tuition and fees, institutions are able to negotiate volume discounts on behalf of their students. In addition, as more classes are taught using digital learning platforms, institutions will require flexibility to adopt new models for how those materials may be used and purchased. Digital learning platforms fully integrate content with personalized learning technologies and other elements to provide students with a holistic learning experience that can be accessed with a laptop, a tablet, a smartphone or some combination of devices. The commenter stated that the emergence of digital learning platforms will also create new market dynamics. While many of these new dynamics are over the horizon, some are reasonably clear at present. Because digital learning platforms integrate content with personalized quizzes, exercises and problems as well as a calendar of assignments and student-faculty online communication, the platforms are not optional—students must have access to the digital learning platform by the first day of class. Moreover, the commenter contended there can be no legitimate aftermarket for digital learning platforms and there is no way to legitimately access the platforms except through portals authorized by the digital learning company. Consequently, including digital learning platforms as tuition and fees is one way to ensure that students have access to this new technology in a convenient and timely manner.
A few commenters stated that if the Department goes forward with the regulations, it should require that, as proposed by the community colleges during negotiated rulemaking, if an institution includes the cost of books and supplies as part of tuition and fees, it must separately and publicly disclose such costs in the schedule of tuition and fees along with a written statement justifying the reason for this inclusion and the value to students for taking this approach by the institution. The commenters argued that this proposal requires disclosure and promotes transparency, and also incorporates the concept of “value to the student” which would include both the financial best interest of the student as well as the pedagogical value to the student. The commenters explained that under the community colleges' proposal, books and supplies could be included as tuition and fees where there is pedagogical benefit to the student but the effect on the student's financial best interest is neutral. The commenters concluded by stating that it is clear that including books and supplies as tuition and fees can provide pedagogical benefits to students: Those benefits should be taken into account by any regulation promulgated by the Department and should be sufficient in and of themselves to justify including books and supplies as part of tuition and fees.
Other commenters agreed with the proposal. Some believed the proposal would provide helpful transparency around the practice of including charges for books and supplies along with
While acknowledging the Department's concerns about overcharging for otherwise widely available materials, one commenter disagreed that imposing the “best financial interest” requirement on all institutions is warranted or applicable when course materials are not widely available or available electronically only through the institution. Instead, the commenter suggested that the regulations merely require an institution to disclose the amounts separately, arguing that this allows for students to do a cost comparison for materials that may be available through other channels and make an informed decision.
We take issue with the notion that institutions enjoy complete discretion to include books and supplies in tuition and fees pursuant to section 472 of the HEA. Books are referenced in section 472(2), a paragraph separate and apart from section 472(1), the provision regarding tuition and fees. Moreover, “supplies” are addressed not only in section 472(1), but also in 472(2)—the first covering “tuition and fees normally assessed a student carrying the same academic workload as determined by the institution, and including costs for rental or purchase of any equipment, materials, or supplies required of all students in the same course of study,” and the second covering “an allowance for books, supplies, transportation, and miscellaneous personal expenses. . . .” So section 472 on its face contains no justification for including books, whether paper or digitized, as tuition and fees; and it permits an institution to treat supplies as tuition and fees only if they are “normally assessed” and “required of all students in the same course of study.” This structure is inconsistent with the commenter's claims.
Furthermore, it would be unlawful to read section 472 in isolation from the other portions of title IV of the HEA. Whenever books and supplies are included in tuition and fees, this results in students having no opportunity to decide for themselves whether or how to obtain these materials or what if anything to pay for them. Two separate provisions of title IV prohibit such a result. Section 401(e) of the HEA, regarding Pell Grants, provides that “any disbursement allowed to be made [by an institution] by crediting the student's [ledger] account
With regard to the request that we adopt the community college proposal under which an institution that includes books and supplies as part of tuition and fees would provide a written statement justifying the reason and the value to student for doing so, we decline. As noted by the commenters, under this proposal an institution could provide a pedagogical reason for including books and supplies. Although well intended, the proposal would allow some institutions to include the costs of books and supplies as part of tuition and fees to the detriment of students. Neither students nor the Department would be positioned to evaluate claims regarding pedagogical value, and under HEA sections 401(e) and 455(j)(1) consumer protection supersedes pedagogy. For these reasons, and to enable to the Department to take enforcement actions, we proposed in the NPRM that including books and supplies had to be in the best financial interests of students. However, we are partially persuaded by the commenters to adopt a different approach that is beneficial to students and institutions, while also addressing the Department's concerns.
Under this approach, an institution may include the costs of books and supplies as part of tuition and fees under three circumstances: (1) The institution has an arrangement with a book publisher or other entity that enables it to make those books or supplies available to students at below competitive market rates, (2) the books or supplies, including digital or electronic course materials, are not available elsewhere or accessible by students enrolled in that program from sources other than those provided or authorized by the institution; or (3) the institution demonstrates there is a compelling health or safety reason.
The commenters made a persuasive argument that including books and supplies would not only enable an institution to negotiate better prices for its students, it would result in students having required course materials at the beginning of a term or payment period. Although the commenters did not elaborate on the extent to which an institution could negotiate better prices, if the price charged to students is not below prevailing market prices, the only remaining benefit to the student is that he or she will have the materials at the beginning of the term. But, that is already addressed by § 668.164(m), which requires an institution to provide a way for many students to obtain or purchase required books and supplies
However, even if the institution's prices are below competitive market rates, by allowing the institution to include books and supplies as part of tuition and fees, students will not have the option of seeking even lower cost alternatives such as used books, rentals, or e-books. This is the same outcome that may occur by the way an institution provides books and supplies to students under § 668.164(m). Under that section, the student may opt out of the way provided by the institution and use his or her credit balance funds to obtain books and supplies elsewhere. The same opt out provision is needed here to enable students to seek potentially lower cost alternatives. We note that a student who opts out under this section is considered to also opt out under § 668.164(m), and vice versa, because the student has determined to obtain books and supplies elsewhere. But, even with an opt out provision, we are concerned that students who would otherwise seek lower cost alternatives will settle, out of sheer convenience, for the price of books and supplies negotiated by the institution. So, we encourage institutions to negotiate agreements with publishers and other entities that provide options for students. Finally, we adopt for this provision the same approach used in § 668.164(m), that an institution must provide a way for a student to obtain the books and supplies included as part of tuition and fees by the seventh day of a payment period.
We are convinced that digital platforms, and digital course content in general, will become more ubiquitous and that including digital content as part of tuition and fees ensures that students have access to this technology. Similarly, we agree with some commenters that where books and supplies are not available from sources other than institution, those materials may be included as part of tuition and fees.
Lastly, as discussed during the negotiated rulemaking sessions, if there are compelling health or safety concerns, an institution may include, as part of tuition and fees, the cost of materials, supplies, or equipment needed to mitigate those concerns. For example, as part of a marine biology or oceanographic degree program, an institution requires students to take a scuba diving class where it is critical that those students have specific and properly functioning equipment to avoid serious health issues. To ensure the safety of its students, the institution maintained and provided the same equipment to all of the students in the class.
An institution that does not satisfy or choose to exercise at least one these options, may not include the costs of books and supplies as part of tuition and fees for a program. In that case, the institution has to obtain the student's authorization under § 668.165(b) to use title IV, HEA programs to pay for books and supplies that it provides. We remind institutions that under § 668.165(b)(2)(i), they may not require or coerce a student to provide that authorization. Therefore, an institution may not require a student to purchase or obtain books and supplies that it provides. This consequence, and the condition where an arrangement with a publisher or other entity must result in below market prices, addresses the Department's concerns that students may be overcharged for books and supplies.
On a separate issue, this commenter asked whether proposed § 668.164(c)(4) would work as intended when aid from different title IV, HEA programs comes in at different times. The commenter posited the example of a student getting Pell Grant and campus-based aid for the fall and spring terms on time, but also getting a Direct Loan (that was intended for the fall and spring) disbursed as a single late payment in the spring term. In view of proposed § 668.164(c)(4) which allows an institution to include in the current payment period allowable charges from a previous payment period in the current award year or loan period for which the student was eligible, if the student was not already paid for such a previous payment period, the commenter asked whether the portion of the loan applicable to the fall could be used to credit the student's account for allowable outstanding fall charges under proposed § 668.164(c)(1) (basically tuition and fees, and room and board charges) without the student's permission even though the student was paid other aid in the fall. The commenter also asked whether there would be an exception to the rule in § 668.164(c)(4) when institutional charges were greater in one term compared to another term, since Pell
With regard to § 668.164(c)(4), we agree with the commenter who suggested that Direct Loan funds (or any title IV funds) that are intended to cover previous payment period expenses, but are disbursed late in a lump sum in a subsequent payment period, should be allowed to be credited to a student's account without the student's permission to cover unpaid charges from those previous payment periods, notwithstanding the fact that the student may have already been paid some other title IV aid for those previous payment periods. Had the aid in question been ideally disbursed, it would have been disbursed in all payment periods for which it was intended and such disbursements would have alleviated, or substantially reduced, any carry over charges from the earlier payment periods. In fact, we believe that the institution should be able to bring forward to the current payment period any unpaid allowable charges from previous payment periods in the current award year or current loan period for which the student was eligible for title IV, HEA program funds. The principle behind § 668.164(c)(1) is that an institution should not be able to collect from title IV funds institutional charges for the entire program in the first few payment periods, thereby denying the student the ability to use some of his or her funds for non-institutional educational expenses in those early payment periods. Ideally, some of a student's title IV aid should be available to the student to pay for non-institutional educational expenses in each payment period. However, if the student has allowable outstanding institutional charges associated with previous payment periods in the current award year or loan period, as opposed to charges associated with future payment periods, then we believe it is appropriate for the institution to be able to use title IV funds to cover those expenses before it makes those funds available to the student for non-institutional educational expenses.
We have also revised § 668.164(c)(4) to indicate that all allowable unpaid prior payment period charges from payment periods in the current award year or loan period for which the student was eligible for title IV aid can be brought forward and associated with the current payment period.
One commenter asked whether book charges must be prorated in the same way as tuition and fees, and room and board. Another commenter opined that the prorating provisions effectively preclude an institution from charging by the program. A third commenter believed that the proposed method for prorating charges was appropriate, but questioned whether it would have any effect on the regulation addressing the treatment of title IV funds under § 668.22 when a student withdraws from the institution. The commenter also noted that current rules addressing the cost of attendance for loan recipients require an institution that charges for more than one year up front to include all the program charges in the cost of attendance for a loan made for the first year, and include only costs other than the program charges in the cost of attendance for loans made for subsequent years. The commenter reasoned that this loan provision coupled with the proposed requirement to evenly prorate institutional charges over the number of payment periods in the program may result in large credit balances provided to the student for the payment periods covered by the first year loan, while the smaller, subsequent year loan payments applied to prorated charges may not produce any credit balances for the student.
Prorating charges under § 668.164(c)(5) does not affect the return of title IV funds calculation under § 668.22.
We acknowledge that that the cost of attendance rules for loans coupled with prorating charges could result in the outcome noted by the commenter. However, we believe the advantages of prorating charges—that students will generally have credit balance funds available to meet current educational expenses—outweigh the anomalous situation created by institutions that charge students upfront. If they choose, institutions can easily avoid the outcome of uneven credit balances by
Those who favored establishing a direct payment system noted that other Federal agencies have successfully implemented such systems and that the receipt of Federal benefits under those systems has gone smoothly. Some commenters also noted that government-issued cards can be a good solution for people without bank accounts; and one noted that the government's negotiating power could compel vendors to create a product with low fees and consumer-friendly features. Thus, some commenters urged the Department to continue to explore such a method of payment and, in fact, to expedite its initiation.
We thank all those commenters who shared their thoughtful analyses of whether such a direct payment system would be in the best interests of students, institutions, private parties, and the government itself. Their comments constitute a good beginning in the overall analysis of the possible benefits and pitfalls of establishing a direct payment system. We will consider this feedback as we continue to determine how title IV credit balance funds may be delivered to students in the most effective, efficient, and convenient manner possible.
Other commenters stated that the Department's increased scrutiny of T1 arrangements and third-party servicers was misplaced and unwarranted. These commenters argued that we did not demonstrate why a higher level of scrutiny was appropriate for third-party servicers that offer financial products than for more traditional banking entities that directly market their products to students.
We disagree with the commenters who asserted that we did not provide sufficient justification for subjecting accounts offered under a T1 arrangement to a higher level of regulatory scrutiny. To the contrary, in the preamble to the NPRM, we describe in detail the findings of several consumer groups and government entities. As stated in the NPRM, “not all arrangements resulted in equivalent levels of troubling behavior, largely because the financial entities and third-party servicers with which institutions contract face divergent monetary incentives.”
Other types of entities—third-party servicers in particular—are more likely to “seek to partner with schools to provide fee-based services to both the
These issues are not merely theoretical. OIG found that “schools did not appear to routinely monitor all servicer activities related to this contracted function, including compliance with all title IV regulations and student complaints.”
Many of the same commenters also stated that the regulatory provisions establishing the conditions of a T1 arrangement were, in their opinion, overly broad. They argued that because many banking entities also provide third-party services, and because § 668.164(e)(1) establishes that accounts “that are offered under the contract
We understand and acknowledge that there are some entities that simply provide EFT services to institutions and may deliver funds electronically as a contracted function independent of their marketing of other banking services to the general public. However, contrary to commenters' fears, we are not altering the definition of third-party servicer, which already provides that “normal bank electronic fund transfers” does not trigger a third-party servicing relationship. Doing so would be outside the scope of this rulemaking. Because “third-party servicer” is a defined term, and these regulations refer to that defined term, we believe it is clear which entities are covered by the regulations and which are not. For entities that are not third-party servicers—for example, those whose sole function on behalf of the institution is normal bank electronic fund transfers—these regulations neither alter their status nor subsume the contract they have with the institution into a T1 arrangement. We therefore decline to include additional language exempting arrangements that do not go beyond normal bank electronic funds transfers from the regulatory description of T1 arrangement because our use of the defined term “third-party servicer” already does this.
We appreciate the comments that pointed out the consequences of the proposed definition of “T1 arrangement,” and that any third-party servicer that offers accounts generally to the public would fall under the provisions of § 668.164(e). We note, as a threshold matter, that it was not our intention to regulate accounts only incidentally offered to students. As we noted throughout the preamble to the NPRM, these regulations seek to govern institutions, third-party servicers, and the arrangements those entities voluntarily enter into that impact title IV funds.
We are persuaded that a portion of the definition of “T1 arrangement,” as
As we explained in the preamble to the NPRM, our intent for including these additional clauses was to prevent an easily exploitable loophole whereby a third-party servicer who offers one or more accounts to title IV recipients simply omits any mention of such accounts from the contract with the institution. However, commenters correctly pointed out that some third-party servicers are also banking entities that offer several different types of accounts to the general public, and that by fulfilling both the condition of being a third-party servicer that performs one or more of the functions associated with processing direct payments of title IV, HEA program funds and the condition of offering accounts to the public, some of whom may be students, all of the servicer's generally-available accounts would be required to comply with § 668.164(e). This was not our intent, and we agree that the regulations should be modified to reflect these comments.
However, we disagree with commenters who recommended two alternative approaches—eliminating the provision entirely, or limiting the scope of the regulations to accounts chosen under the student choice process. For the reasons explained in the NPRM and the preceding paragraphs of this section, these alternatives would create a loophole easily exploitable by those seeking to evade the regulatory requirements applicable to T1 arrangements; simply omitting mention of the account in question from the contract establishing a T1 arrangement, establishing a separate contract, or involving a third-party as either the servicer or the account provider would render § 668.164(e) without effect. Similarly, limiting the provisions of § 668.164(e) to those accounts selected under the student choice menu would create an incentive to avoid the regulatory requirements by ensuring that students sign up for an account through any other method.
Instead, we believe an appropriate alternative is to continue to cover those accounts offered under the contract between the institution and third-party servicer, but limit other accounts covered by § 668.164(e) to those where information about the account is communicated directly to students by the third-party servicer, the institution on behalf of or in conjunction with the third-party servicer, or an entity contracting with or affiliated with the third-party servicer. This not only limits the scope of the provision to those accounts that are intended for title IV recipients but does so in a way where third-party servicers that also offer accounts to the general public can ensure that general-purpose accounts not actually marketed directly to students need not be covered by the regulations.
In Departmental reviews of accounts offered to students at institutions with contracts that would fall under § 668.164(e) as proposed, we have observed that the predominant practice of account providers under T1 arrangements is to offer a separate, standalone student banking product. While this practice may not be universal, its prevalence indicates that it is both financially and operationally feasible to offer students a standalone financial product that complies with the fee limitations and other requirements of § 668.164(e). To the extent that a student opens an account offered to the general public and not marketed under or pursuant to a T1 arrangement and then elects to use that preexisting account option under § 668.164(d)(4), that account would not be required to comply with the provisions of § 668.164(e). Therefore, if a third-party servicer were concerned that all of its general banking products would be covered by § 668.164(e) because it markets and promotes all of those products to students at the contracting institution, it can elect to establish a standalone banking product that complies with the provisions of § 668.164(e) and limit its direct marketing, promotion, and specialized communications to students at that institution to this latter bank account offering. This practice, which we have observed is already common among many third-party servicer financial account providers, would ensure that only the account designed for title IV recipients at the institution would have to comply with § 668.164(e).
Some commenters requested that the Department provide specific examples of what would constitute a T1 arrangement, a T2 arrangement, or neither; these commenters stated that examples would assist institutions attempting to comply with the regulations. One commenter believed that an institution assisting a student in opening an account, regardless of the actual relationship between the institution and the bank, would give rise to a T1 arrangement.
We also received comments arguing that parents should not be included in the regulatory provisions under T1 arrangements because they are not typically the recipients of credit balances; and even when they are, such credit balances are typically transferred to a preexisting account, rather than an account offered under a T1 arrangement.
One commenter requested that we clarify whether the requirements for T1 arrangements continue to apply when the student is no longer enrolled at the institution.
To the extent that a single provider serves as a third-party servicer and offers multiple account options to students of that institution, those account offerings must comply with the requirements for T1 arrangements even if, absent the third-party relationship, one or more of those offerings would only constitute a T2 arrangement. This is because the differentiating factor between these two types of arrangements is the presence of a third-party servicer that is offering (or communicating information about) the account to students. If a third-party servicer that contracts with an institution is offering or marketing multiple accounts to title IV recipients at that institution, all of those accounts would be required to comply with the requirements for T1 arrangements. We intended this different treatment because, as we explained earlier in this section of the preamble and in the NPRM, a third-party servicer exerts a tremendous amount of control over the disbursement process and timing. Simply because such a financial account provider offers functionality through, for example, a student ID that would only constitute a T2 arrangement absent a third-party servicer relationship, does not obviate the potential for abuse when such a third-party servicer relationship does exist. Therefore, it would not be possible for a single financial account provider to offer two different types of accounts at a single institution, one that was required to comply with the requirements for T1 arrangements and the other with the requirements for T2 arrangements.
In response to providing examples of what constitutes the two different arrangements under the proposed regulations, we believe the regulatory language and the extensive descriptions of these arrangements in the preambles to the proposed and final regulations provide sufficient detail. In short, accounts offered under the contract with third-party servicers or marketed by third-party servicers, their agents, or the institution on behalf of the third-party servicer, are T1 arrangements that fall under § 668.164(e). Accounts offered by non-third-party servicers and directly marketed to students (either by the institution, through the use of a student ID, or through a cobranding arrangement) are T2 arrangements that fall under § 668.164(f). Accounts offered to students that do not fall under either of these arrangements are not subject to the regulations. Examples of such circumstances include general marketing agreements (
With respect to the commenter who stated that an institution assisting a student in opening an account would give rise to a T1 arrangement, this is not the case. An arrangement qualifies as a T1 arrangement only if an institution engages a third-party servicer to perform activities on its behalf.
We agree with the commenter who argued that parents should not be included in § 668.164(e). We discuss our reasons for this change in greater detail in the student choice section of this document.
Because the purpose of these regulations is to ensure that students have access to their title IV credit balance funds, we believe the regulations should not apply when a student is no longer enrolled and there are no pending title IV disbursements, because it is not then possible for the student to receive title IV credit balance funds into an account offered under a T1 arrangement. We are therefore adding a provision specifying this treatment; because the considerations are equally applicable to T2 arrangements, we will add an equivalent provision in § 668.164(f). However, we do not believe this should eliminate institutions' responsibility to limit the sharing of private student information and because institutions are already limited from sharing that information under the final regulation, we do not believe a continued limitation would present an additional appreciable burden.
For students who discontinue enrollment but then reenroll at a later date, either at the same institution or a different institution, they would go through the same student choice process described in § 668.164(d)(4)(i) as any other student receiving a credit balance. Such students would either communicate preexisting account information or select an account offered under a T1 arrangement from the student choice menu.
We note that this provision ending the regulation of accounts opened under T1 and T2 arrangements does not limit the requirement that an institution must report the mean and median annual cost information for students who were enrolled in a preceding award year. For example, a student is enrolled and receives credit balance funds in the 2018–2019 award year and then graduates at the end of that year. Although the provisions of § 668.164(e) would no longer apply to that student in award year 2019–2020, the institution would still have to include the student in its report of mean and median annual cost information for award year 2018–2019, even if the reporting itself is completed during award year 2019–2020.
We have added § 668.164(e)(3) to specify that the requirements applicable to T1 arrangements cease to apply with respect to a student when the student is no longer enrolled and there are no pending title IV disbursements at the institution, except for § 668.164(e)(2)(ii)(B) and (C), governing the limitation on use and sharing of private student information. We have specified in paragraph (e)(3) that this does not limit the institution's responsibility to report mean and median annual cost information with respect to students enrolled during the award year for which the institution is reporting. We have also clarified that an institution may share information related to title IV recipients' enrollment status with the servicer or entity that is party to the arrangement for purposes of compliance with paragraph (e)(3).
Several commenters argued that agreements that constitute T2 arrangements under the proposed regulations are outside the Department's purview. Some commenters argued that the simple presence of cobranding or direct marketing did not amount to coercion of students to sign up for the financial product in question. Others argued that the government and consumer reports cited by the Department in the NPRM did not single out arrangements that would constitute T2 arrangements as posing additional danger to students, and therefore regulation of these arrangements was unwarranted. Some commenters recommended that the Department eliminate the requirements relating to T2 arrangements; others suggested that we instead require institutions to prominently inform students that no account is required to receive title IV aid.
As we explained in the NPRM, T1 arrangements involve account offerings where the financial account provider acts in place of the institution as a third-party servicer, controlling the mechanics of the disbursement process itself. The arrangements are also geared toward shorter-term fee revenue,
Nevertheless, contrary to the claims of the commenters who urged us to abandon the regulations governing T2 arrangements, these accounts are not without risks to title IV recipients. As we noted in the NPRM, the account offered under a T2 arrangement has an apparent institutional endorsement, and the marketing or branding of the access device associated with that account is likely to lead students to believe that the account is required to receive title IV funds. In addition, offering an account under a T2 arrangement gives students the impression that the terms of the account have been competitively bid and negotiated by the institution, or, at a minimum, represents a good deal because it has been endorsed by the institution. As we detailed in the NPRM, the institution's assistance in marketing activities and apparent seal of approval led to take-up rates far in excess of what would occur in the event of arms-length transactions by consumers choosing a product in their best interest.
We believe the best way to mitigate the risks presented by accounts offered under different types of arrangements is the tiered framework we proposed in the NPRM. If we applied the fee provisions applicable to T1 arrangements to T2 arrangements, we believe this distinction would break down and we would not be applying a regulatory framework appropriate to the dangers that different types of accounts present to students receiving title IV aid. If we instead eliminated the proposed, more limited regulatory provisions governing T2 arrangements, the disclosure requirements would not be in place to serve the dual functions of ensuring that students receive adequate information prior to account opening and that institutions are entering into contracts that provide fair terms to aid recipients. We also note that consistent with some commenters' recommendations, the proposed regulations already required that institutions inform credit balance recipients that their receipt of title IV funds does not require that they open any particular financial account. As we explained in the NPRM, we believe the approach proposed strikes the proper balance and targets regulatory action to the areas where it is warranted.
We received a number of comments on the provision in the proposed definition of “T2 arrangement” and the limitation where the requirements do not apply if the institution awarded no credit balances in the previous year. Some commenters supported the approach in the proposed regulations and recommended that even if we altered the numerical threshold, we should maintain the structure of the provision, which requires institutions to document that they are exempt from the requirement, rather than establishing the presumption of an exemption.
Other commenters claimed that institutions would not be able to determine whether any students were credit balance recipients in the prior award year. Many commenters believed that a threshold of a single title IV recipient was not commensurate with the cost and burden imposed on institutions to comply with the requirements of § 668.164(f). Several commenters supported a “reasonable” threshold, but did not specify what “reasonable” would constitute. However, only one of these commenters offered an alternative threshold for a safe harbor. That commenter recommended a safe harbor threshold of 5,000 enrolled students (rather than title IV credit balance recipients) before applying the requirements of § 668.164(f), but did not provide any
As discussed below, we agree with commenters that a higher threshold of title IV recipients at an institution in a given year is appropriate for certain T2 requirements. Nonetheless, we agree with commenters who recommended that, whatever threshold applies, we should continue to require institutions to document that they are exempt, rather than establishing a presumption that institutions are exempt. We believe that for reasons of student protection and ensuring compliance with program reviews, requiring institutions to document that they qualify for an exception is a more appropriate framework.
We reject the assertion that institutions are unable to determine the number of credit balance recipients in a prior award year. Under the record keeping requirements of 34 CFR 668.24 and the 14-day credit balance requirements that have been in effect for many years, an institution is responsible not only for maintaining records of those credit balances, but for showing that those balances were paid in a timely manner to students and parents. Therefore, if a credit balance occurs, the school must not only pay it, but also have records of such payment.
We requested comment on whether the number of recipients should be expanded beyond a single credit balance recipient in the previous award year. While we appreciate that several commenters believed the threshold should be increased, with one exception, commenters did not offer alternatives and supporting evidence, as we requested. We are not adopting the only suggested threshold of 5,000 enrolled students for several reasons. First, there was no reasoning provided for this alternative threshold. Second, this number is based on enrollment rather than the number of title IV or credit balance recipients, and therefore is not sufficiently related to the Department's intent of exercising appropriate regulatory oversight of the title IV programs.
We continue to believe that a number of the T2 protections should apply unless the institution documents that it had no credit balance recipients in at least one of the three most recently completed award years. For example, if an institution had no credit balance recipients two years ago, but had credit balance recipients both last year and three years ago, it would not be required to comply with the regulatory provisions associated with T2 arrangements. This is to ensure that for an institution that had a credit balance recipient in only a single year and for which this was a unique occurrence, it would not be subject to regulatory requirements designed for institutions where credit balance recipients are consistently present. Under these final regulations, if an institution had at least one title IV credit balance recipient in each of three most recently completed award years, the institution: (1) Needs to ensure that students incur no cost for opening the account or initially receiving an access device; (2) must ensure that the student's consent to open the financial account is obtained before the institution or its third-party servicer provides any personally identifiable about the student to the financial institution or its agents (other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37), sends the student a financial account access device, or validates a financial account access device that is also used for institutional purposes; (3) must include the account offered under the T2 arrangement on the student choice menu and disclose as part of that choice process the terms and conditions of the account; (4) must ensure that the account is not marketed or portrayed as a credit card; (5) must disclose the contract between the financial account provider and the institution by posting it on the institution's Web site and providing an up-to-date URL to the Secretary; and (6) must ensure that the provisions in the contract underlying the T2 arrangement are consistent with the regulatory requirements of § 668.164(f)(4).
We continue to believe the above provisions should apply unless there were no credit balance recipients in at least one of the three most recently completed award years for several reasons: To comply with provisions of the HEA; because of the risks present to students absent these protections; and because of the low burden of compliance for institutions. Most importantly, the prohibition on account-opening fees is mandated by, for example, HEA sections 487(a)(2) and 454(a)(5).
In addition, obtaining the student's consent before private information is shared, or an unsolicited access device is provided, is necessary to ensure the protection of student data and that students are given account information before being sent an access device. These provisions ensure that title IV does not become a vehicle for circumventing the privacy protections in FERPA. We also note that under the revisions made in these final regulations, the financial account provider may secure this consent.
The requirements to include the account on the student choice menu and provide the student with the terms and conditions of the account are likewise applicable under the final rule. All of the non-Federal negotiators and numerous commenters stated that a crucial principle in this rulemaking is ensuring that all students are provided account terms up front so they can properly understand the terms and fees of an account before they consent to open it. Because financial account providers will be required to comply with the upcoming CFPB card disclosures, and because those disclosures can be provided electronically, these provisions do not go beyond ensuring that information required to be disclosed anyway is furnished in a time and manner that is effective in helping title IV recipients choose a financial account. The burden associated with providing these disclosures to students as a part of the student choice menu is negligible and occurs at a juncture at which institutions are already required to communicate with prospective credit balance recipients. We see no justification for not providing these disclosures in any circumstance in which title IV credit balance recipients are among the population affected by a T2 arrangement.
We are also requiring that institutions post their T2 contracts to their Web sites and provide the Secretary with an up-to-date URL for that Web site (up-to-date signifying that should relevant documentation no longer be located at that URL, that the institution must provide the Secretary with an updated URL). The Department and the public have a strong interest in knowing the terms of marketing contracts shown to have the
The final requirements for this credit balance recipient threshold, that the access device not be portrayed as a credit card and that the contract comply with the requirements of § 668.164(f)(4), are also important to ensure that even if a limited number of students receive credit balances, those students are not under the false impression that they have received a credit card, and that the institution's contract is in compliance with the regulatory requirements set out for T2 arrangements. We also note that these provisions present little additional burden to the institution. The credit card prohibition is an existing requirement and we do not believe institutions or their financial account providers will have difficulty continuing to comply with a requirement that prevents them from portraying an access device as a credit card. Similarly, because institutions with a contract governing the direct marketing specified in § 668.164(f)(3) will necessarily have to negotiate the terms of that contract, we do not believe appreciable additional burden is entailed by ensuring that such contracts comply with the applicable regulatory provisions outlined in these regulations.
However, we agree with the balance of the comments that one title IV recipient is too low a threshold for several of the other provisions in § 668.164(f)(4); and are therefore establishing a higher threshold of credit balance recipients that would trigger the requirements in § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii). These requirements are: The yearly posting of certain cost and account enrollment figures on the same institutional Web site that contains the full posted contract—the requirement for which would already exist because of the presence of one credit balance recipient at the institution; the availability of surcharge-free ATMs; and the due diligence of institutions in entering into and maintaining T2 arrangements. While these provisions focus on the terms of the T2 contract and attempt to ensure, through transparency and affirmative requirements, that the accounts that institutions market to title IV credit balance recipients provide favorable terms and convenient access, we recognize that at many institutions that may have T2 arrangements, relatively high tuition and fees mean that students receiving credit balances may be the exception rather than the rule. At these institutions where title IV credit balances are atypical, if the number of credit balance recipients is sufficiently small, a number of factors come into play, drawing into question the benefit of applying one or more of the provisions at § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii):
• As many commenters noted, these provisions do impose some burden. They involve the tracking, compilation, and public disclosure of statistical data and other information; are more likely to require negotiations between the institution and its T2 partner(s); and necessitate providing convenient ATM access and ongoing efforts on the part of the institution in providing the due diligence required.
• An institution with few credit balance recipients will, in all likelihood, be negotiating a T2 arrangement for accounts to be used almost exclusively by more affluent students able to maintain higher account balances. Such an institution will have different goals and account features in mind, and the financial account provider will have different incentives, than would be the case if the students enrolled included a significant number of lower-income credit balance recipients.
• More broadly, as mentioned, a number of financial institution commenters have questioned the link between campus marketing arrangements and title IV administration. Immediate prior history of the enrollment of a significant proportion of credit balance recipients at the institution establishes that credit balance recipients are necessarily among the intended targets of the marketing campaign and in sufficient numbers to justify requiring specific attention be paid to their interests.
After considering all of the above, we believe § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii) should not apply to institutions at which the occurrence of credit balance recipients is purely incidental and
The five percent figure is calculated by dividing:
(1) For the numerator, the average number of students who received a title IV credit balance during the three most recently completed award years;
(2) For the denominator, the average of the number of students who were
With regard to the threshold based on percentages of credit balance recipients, the Department has found a five percent threshold useful and reliable in other contexts in identifying when an occurrence or characteristic is too infrequent to warrant application of regulatory requirements. In the Department's financial responsibility regulations at 34 CFR 668.174(a)(2), we set a threshold of five percent of title IV funds received as the level at which liabilities assessed for program violations are significant enough to take the violation into account in determining the past performance aspect of financial responsibility. Likewise, 34 CFR 668.173(c) provides that an institution is not in compliance with the refund reserve requirements if a program review or audit establishes that the institution failed to return unearned funds timely for five percent or more of the students in the sample reviewed or audited. Similarly here, the five percent threshold operates to exempt institutions from the requirements in § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii) where receipt of a credit balance is atypical. At the same time, the data related to the average enrollment among the various sectors of institutions (discussed in more detail in the Regulatory Impact Analysis section) shows that using a threshold of five percent will not stand in the way of these provisions reaching all sectors of institutions identified in the oversight and consumer reports as having card agreements.
We recognize that using a five percent threshold may, in a limited number of cases, affect smaller institutions with relatively few credit balance recipients. For example, an institution with 1000 students could conceivably have as few as 50 credit balance recipients before being required to comply with the entirety of the provisions relating to T2 arrangements. First, we note that such cases will be extremely rare. An institution with so few credit balance recipients is unlikely to provide a sufficiently large potential customer base for a financial account provider to enter into a T2 arrangement with the institution. Furthermore, it is entirely within the institution's control whether they choose to enter into a direct marketing contract with a financial account provider. If the institution decides that it would like to have a financial account available for its students, it can easily provide information about locally-available accounts without entering into a contract with a financial account provider at all. Alternatively, it can enter into a contract with a financial account provider, but ensure that the institution is not directly marketing the account or providing, for example, cobranded card features. By ensuring that the account is only generally marketed to students, the school can choose not to have a T2 arrangement and will not have to comply with the regulatory requirements.
The final rule supplements the five percent threshold with a threshold relating to the average number of credit balance recipients, because at large institutions, a five percent threshold, standing alone, would leave large numbers of title IV credit balance recipients without the protections of § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii). We believe § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii) should, at a minimum, apply to any institution at which credit balance recipients are numerous enough, standing alone, to significantly impact the commercial viability of entering into a T2 arrangement. Based on the data currently available to the Department, we have determined that a threshold of 500 credit balance recipients satisfies this test and have incorporated that figure as a separate threshold triggering applicability of § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii). In establishing that threshold, we note that, in examining publicly available institutional and financial account provider data reflecting the institutions that have elected to enter into agreements with financial account providers, institutions with an average enrollment as low as approximately 2,000 students nevertheless had a sufficiently large student population to lead to formation of these agreements. Five hundred credit balance recipients would represent almost 25 percent of the students receiving T2 marketing materials at these institutions.
In sum, we believe that requiring that an institution have credit balance recipients either comprising five percent of enrollment or totaling 500 students, averaged over three years, before § 668.164(f)(4)(iv)–(vi) and (f)(4)(viii) are triggered will exclude institutions at which credit balances are atypical and credit balance recipients are few, while maintaining a separate threshold to provide students the other benefits and protections afforded under T2 arrangements and in providing the Department and the public with information regarding the nature of these arrangements. We also note that these thresholds do not preclude schools from providing this information to the Department or negotiating their contracts in the best interests of students, and have added regulatory language reflecting this fact. Ultimately, we believe this will assist in future policymaking to ensure we are properly balancing the considerations discussed in the preceding paragraphs. We recognize that some institutions exempted by our thresholds will nonetheless provide all of the protections described in the final rule, and we are including a provision encouraging them to do so.
Some commenters also opposed categorizing student IDs with financial account access features as accounts that are directly marketed to students for purposes of § 668.164(f)(1). These commenters stated that the dual functionality provided by these products are a benefit to students and are not the types of products that students may confuse as a required prerequisite to enrollment or receipt of title IV funds.
Some commenters expressed concern that the definition of a “T2 arrangement,” especially with respect to direct marketing, was vague. These commenters argued that the regulations would introduce uncertainty as to whether certain products would constitute directly marketed accounts for purposes of § 668.164(f)(1). Another commenter requested that we specify that the examples cited in the preamble were illustrative, not comprehensive, and that other types of arrangements could also fall outside the definition of “T2 arrangement” under § 668.164(f)(1). Some commenters asked that we further define “direct marketing.” For example, one commenter asked whether a financial account provider that directly markets a product without assistance from the institution would be conducting direct marketing under § 668.164(f)(1).
Other commenters contended that the proposed regulations would discourage institutions from informing students about the types of accounts available for receiving their student aid funds, arguing, this would constitute direct marketing activity that would create a T2 arrangement. These commenters believed that institutions should be able to inform students and parents of all the options available for obtaining title IV credit balances.
Some commenters requested that we exempt general marketing, lease agreements, and other non-direct marketing activities from § 668.164(f). Commenters also requested that we incorporate the preamble discussion from the NPRM into § 668.164(f) and enumerate through regulation examples of practices to which § 668.164 does not apply.
Nevertheless, based on consumer reports, there are several instances of cobranding arrangements outside of the student ID context in which students are subject to the types of direct marketing specified under § 668.164(f) and therefore the risks we have described are still present. For this reason, although we are narrowing the types of cobranding arrangements that will constitute financial accounts that are directly marketed for purposes of § 668.164(f), we believe it is appropriate to include certain instances of cobranding. Based on program reviews, and as described in the comments, we believe the distinguishing characteristic between affinity agreements and those instances where students are the subject of direct marketing is whether the access device is principally marketed to students, rather than offered as a perquisite to the general public.
We believe that in the vast majority of cases this distinction will be plainly evident from the underlying contracts, based on the descriptions of how those contracts in public comments and the practices identified in consumer and government reports. In affinity agreements, the contract typically covers the use of the intellectual property, whereas in cases where there is a more comprehensive cobranding marketing contract, bonuses or incentive payments may compel an institution to take actions to sign up a certain number of accountholders. This likely explains some of the practices observed during program reviews such as the presence of the financial account provider at registration events or the institution's administrative offices. Therefore, we will limit the requirements relating to T2 arrangements to those cobranding arrangements where the access device is marketed principally to students at the institution. For institutions with affinity agreements, the widespread availability of a cobranded access device (as well as devices with cobranding of entities other than a single institution of higher education) to the general public and the language of the agreement itself will be strong evidence that the underlying agreement is not a T2 arrangement.
However, in order to ensure that institutions and financial account providers are not exploiting this safe harbor, an institution must retain the contract and document, if applicable, why the contract does not establish a T2 arrangement (
We disagree with the commenters who suggested that student IDs should not be covered under the regulations. While we agree that student IDs with financial account functionality may represent a convenience for some students, that fact does not obviate the concerns regarding marketing and institutional endorsement identified in the NPRM, especially if the terms of the underlying account are not favorable to the student. We disagree with commenters who argued that students would not confuse such functionality with a requirement to use the account as a condition to enroll or receive aid. To the contrary, most student IDs are institutional requirements, provided by the institution itself, and certainly bear the branding of the institution. We believe that students could easily be led to believe that activating financial account functionality on such a student ID is tantamount to activating the student ID itself; and therefore, disclosure requirements for these accounts are necessary under these circumstances.
We disagree with the commenters who argued the definition of “direct marketing” is vague. In § 668.164(f)(3) we proposed a general set of actions and circumstances that would be considered direct marketing under the regulations. To ensure the regulations are understandable and because it would not be feasible to address every possible circumstance in detail, we decline to set out a list in the regulations of all specific actions and circumstances that may or may not constitute direct marketing. However, we agree with the commenters who noted that the examples provided in the preamble to the NPRM are illustrative of conduct that does not constitute direct marketing, rather than comprehensive, and decline to include those examples in the regulations. We believe those examples on their face fall outside the plain language of § 668.164(f)(3) and its description of “direct marketing” for the purposes of the T2 arrangement requirements. We believe that institutions and financial account providers considering whether their agreements fall under the definition of “T2 arrangement” can determine whether the institution itself communicates information directly to its students about the financial account and how it may be opened. If, for example, the institution publishes instructions for opening the account on its Web site, sends students links via text message to a Web page with promotional materials for the account, or sends a mailing to students with account information produced by the account provider, these practices are plainly direct marketing because the institution is directly conveying information about the account itself or how to open it. If, in contrast, the institution includes advertisements for the financial account provider (rather than the account itself) in a magazine or displays the financial account provider's logo in a dining hall or Web site, these practices would not fall under the “direct marketing” definition in the regulations and would be considered general marketing, as described in the NPRM. To the extent that a financial account provider markets a product to students without assistance from the institution (and if the product is not a cobranded access device or student ID), that is not direct marketing by the institution under the regulations for the preceding reasons.
We also disagree with commenters who argued that institutions would be discouraged from informing students about the types of accounts available for receiving their student aid funds because that would constitute direct marketing activity and would create a T2 arrangement. Institutions that sincerely believe that an account is a good deal for students can continue to provide information about that account absent a contractual agreement with the financial account provider. However, we believe that when an agreement is entered into, the institution has an obligation to promote the account, resulting in an intensity of effort more likely to prompt students to regard the account as a requirement for receipt of title IV aid.
We also disagree with the commenter who stated that a lease agreement would constitute a T2 arrangement. This is plainly not direct marketing under our definition and was highlighted in the NPRM as an example of general marketing that does not constitute direct marketing.
Although the commenter did not explicitly argue that this requirement was inappropriate, it appears that the commenter believed that the accounts offered pursuant to a T2 arrangement at an institution where there are no credit balances should not be subject to the student choice requirements.
We also received comments arguing that parents should not be included in the regulatory provisions under T2 arrangements because they are not typically the recipients of credit balances; and, even when they are, the credit balances are typically transferred to a preexisting account, rather than an account offered under a T2 arrangement.
One commenter noted that once a student is no longer enrolled at an institution and therefore will no longer be receiving a title IV credit balance disbursement, the regulatory requirements should no longer apply.
We agree with the commenter who argued that parents should not be included in the provisions of § 668.164(f). We discuss our reasons for this change in greater detail in the student choice section of the preamble.
We also added a paragraph specifying that the requirements relating to T2
We have added paragraph § 668.164(f)(5) to specify that the requirements for T2 arrangements no longer apply when the student is no longer enrolled and there are no pending title IV disbursements at the institution. We have also specified that paragraph (f)(5) does not limit the institution's responsibility to report mean and median annual cost information with respect to students enrolled during the award year for which the institution is reporting. We have also specified that an institution may share information related to title IV recipients' enrollment status with the financial institution or entity that is party to the arrangement to carry out this paragraph.
We generally agree with the commenters who stated that proposed § 668.164(d)(4) provides relief for students who have often been compelled to sign up for certain institutionally-sponsored accounts, and continue to believe that a number of choices for receiving credit balance payments should be available to students in certain circumstances, such as those associated with the required selection process described above. In particular, for reasons we discussed at length in the NPRM, we believe that the basic requirement that certain options be presented to students in a clear, fact-based, and neutral manner is very important.
We agree that it is important for the student to be given neutral information about account choices. However, we do
One commenter noted that, in its 2014 report, the GAO identified situations in which schools did not present disbursement options in a clear and neutral manner, and appeared to encourage students to select school-sponsored accounts. In some cases, choosing a different option—such as the student's existing bank account—required additional documentation that was time-consuming to locate, and often was not readily available online. This commenter noted that, when making a disbursement selection, a student is effectively at the point of sale and, therefore, most vulnerable to steering practices, and that the Department may want to further specify the order in which the disbursement options must be displayed. The commenter pointed out that, at the negotiated rulemaking session, some negotiators recommended a two-step approach whereby the disbursement selection screen would offer the direct deposit option in a prominent and central location, and then include links further down the page that students could click on if they did not have existing account information to provide.
However, based on the concerns expressed, we are eliminating the proposed requirement that the student's existing account must be pre-selected on the choice menu (
Another commenter echoed this sentiment, stating that colleges and universities should not be required to bring T2 financial accounts into the selection process for title IV refunds. This commenter noted that at many schools T2 arrangements are completely independent of the credit balance payment process and are not explicitly offered as a choice at the time a student is asked to tell the school how he or she prefers to receive credit balance payments. The commenter noted that this is particularly true when the student financial accounts offered under a T2 arrangement take the form of a checking account. The commenter argued that the college typically has no role in the student's effort to open an account. With respect to the selection process, this commenter argued that students who have opted to open an account at a bank with a T2 arrangement should simply be viewed as having an existing account that they will designate for direct deposit of their credit balances. Along similar lines, another commenter urged the Department to amend proposed § 668.164(d)(4) to provide that an institution does not have to provide students with specific options for receiving title IV payments if it: (1) Requests that students or parents simply identify a deposit account to receive their funds when setting up credit balance payment plans, and (2) makes no specific recommendations on the deposit account to be used during the process of setting up those plans.
(1) Ensure that bank account fees and ATM locations meet regulatory requirements;
(2) Guarantee that all bank accounts are insured ones and that any fees are charged and received by the insured (banking) institution;
(3) Decide the order in which the various options to receive credit balances are presented to the student, based on how well each account provides banking services, considering costs, convenience and other factors;
(4) Ensure that all student options are presented in a neutral manner;
(5) Ensure that student payments are made as expeditiously as possible;
(6) Share appropriate personal information in a timely manner so that each depository institution can meet its obligations to verify the student's identity and other information necessary to expedite the delivery of funds;
(7) Require third-party servicers who disburse or accept title IV funds to enter into non-disclosure agreements to protect student privacy and commit to not using the personal information for anything other than its intended purposes without the student's consent;
(8) Allow the depository institution to charge a reasonable fee for more than one overdraft a month; and
(9) Require that financial literacy education be provided to students as part of each bank offering.
On the other hand, several commenters supported the requirement that schools include checks as an option in their selection process for the receipt of credit balances. One commenter stated that, while most students today may opt for electronic receipt of their financial aid funds, some may find that a check better meets their needs. Further, some institutions such as community colleges may not have direct control over how funds are disbursed due to State or municipal regulations, and may not be able to provide direct deposit as a disbursement option at the present time. The commenter argued that, for these reasons, retaining the check option makes sense at least in the short term. The commenter suggested that the Department could consider a gradual phase-out of checks in three to five years as an alternative approach that would encourage States and municipalities to facilitate a move toward EFT options for impacted institutions. Another commenter noted that, in fiscal year 2014, his school issued 18,999 refunds, totaling $23.9 million. Of those 18,999 refunds, 10,794 were checks and 8,205 were EFT direct deposit (
The Department acknowledges that there are times when issuing a check will be necessary to pay a credit balance to a student. As is the case under the current regulations, when an institution wishes to pay a student with an EFT, but the student does not choose such an option, or otherwise fails to supply the institution with sufficient information in a timely manner to allow the institution to disburse the title IV credit balance in the desired fashion, the institution must still pay the student. The institution can then issue a check to that individual to fulfil the requirement. And we acknowledge that some institutions may choose to use checks exclusively or in limited circumstances. However, after considering the arguments made by the commenters, we agree that a check is not usually the best choice for the institution or the student and that the Department should not require it to be offered as an option to the student in the selection process. The institution should be left with the option here, and
Finally, with regard to the suggestion to eliminate the cash option, the Department believes that, while it is probably only rarely used, it may be a convenient way for an institution to pay a student in some circumstances and, therefore, is being retained. However, this option is not required to be listed in a school's selection process and, thus, is not one that a student can choose.
One commenter stated that universities have the right to share information relating to their business practices with third-party servicers without requesting prior permission and that this provision could cause delays in transferring title IV funds to students. Another commenter stated that the allowable data that could be disclosed under the proposed regulations would be more limited than what educational institutions are permitted to disclose under the directory information exception to consent under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g(a)(5) and 34 CFR 99.31(a)(11) and 99.37.
Commenters also expressed concern that the proposed regulations could cause increased administrative burden for institutions. One commenter suggested that institutions would have to implement a roundabout process wherein institutions themselves would ask students if they wanted to open a financial account and then, only upon receiving consent to the opening of the account, share the information necessary to permit the third-party servicer to authenticate the student's identity or cut a disbursement check. That commenter noted that such a process would be impractical. Other commenters suggested that the proposed language would interfere with a student's ability to select another disbursement option such as a check or EFT to a preexisting account.
One commenter suggested that current regulations prevent student information from being used for purposes other than identification, and noted that other government programs use Social Security numbers or dates of birth for identification purposes. Another commenter recommended that the Department revise the regulations to clarify that third-party servicers are still able to obtain information required to perform general administrative purposes.
However, other commenters suggested that the proposed regulations did not go far enough. These commenters expressed concern that even the limited personal information that servicers and financial institutions can receive prior to a student giving consent allows account providers to market accounts to students and that the materials received by students under these circumstances imply a school's endorsement of those accounts. Commenters also suggested that we include a provision strictly limiting use of data shared with a third-party servicer to the processing of title IV disbursements, and prohibit institutions from disclosing this information to any other entity except for the purposes of fulfilling title IV duties.
We disagree with the commenter who stated that universities have the right to share any information they choose with their business partners without prior consent. FERPA, 20 U.S.C. 1232g and 34 CFR part 99, contains broad limits on the right of educational institutions and agencies receiving funding under a program administered by the Department to disclose an eligible student's personally identifiable information from education records without the student's prior, written consent. Wholesale sharing of information, beyond the information needed to perform the servicing tasks, is not within the servicer's purview under title IV.
We also disagree that this regulatory provision, with the changes described above, will cause significant delays with regard to transferring title IV credit balances to students. An institution desiring to share additional information needed by the servicer only has to ensure that the student made a selection in the student choice process that triggers additional disclosure of personally identifiable information.
We agree with the commenter who stated that the provision, as proposed in the NPRM, would have been more restrictive than FERPA with respect to the disclosure of directory information. As a result, for accounts offered under T1 arrangements, we have clarified that an institution may share directory information, as defined in 34 CFR 99.3 and in conformity with the requirements of 34 CFR 99.31(a)(11) and 99.37, in addition to the student ID
We acknowledge that the restrictions on information sharing may create additional administrative burden for institutions. However, we believe that the changes made to these provisions ensure that institutions that have T1 arrangements will not have to engage in the two-step process envisioned by these commenters to deliver a credit balance. We believe that the changes to the regulations ensure that institutions can continue to use third-party servicers to contact students, safely identify them, and guide them through the selection process. A student can then either choose an account offered under a T1 arrangement, prompting the sharing of additional information, or provide his or her banking information at the selection menu. For this reason, we do not believe these regulations will interfere with a student's ability to select his or her own, preexisting account.
In addition, we do not believe that the restrictions on information-sharing as they apply to accounts offered under T2 arrangements are problematic from a credit balance delivery perspective since account providers under T2 arrangements do not manage direct payments of title IV funds. Before the student has agreed to open the account, there is no need or justification for sharing the student's non-directory information with the account provider. We disagree with the commenter who suggested that current regulations have been sufficient to deter unwarranted sharing of personally identifiable information. Oversight reports
We disagree with the commenter who suggested that we clarify that third-party servicers are still able to obtain information required to perform general administrative purposes. We believe such a statement is too broad and would undermine our ability to ensure that student information is not used for purposes other than the delivery of title IV credit balances.
We agree with the commenters who suggested that the provision as drafted did not address the fact that shared information should only be used for legitimate title IV purposes and not the marketing of financial accounts. As a result, we have revised the section on T1 arrangements to state that institutions must ensure that information shared prior to student selection is used solely for activities that support making direct payments of title IV funds and cannot be shared with any other affiliate or entity. We have not made a similar change to the provisions governing accounts offered under T2 arrangements because those account providers do not process title IV funds. Furthermore, under the regulations account providers under T2 arrangements will not have any non-directory information to disclose prior to the student's consent to opening the account.
• A unique student identifier generated by the institution that does not include a Social Security number or date of birth, in whole or in part;
• The disbursement amount;
• A password, PIN code, or other shared secret provided by the institution that is used to identify the student; or
• Any additional items specified by the Secretary in a notice published in the
We have also revised § 668.164(e)(2)(ii) to provide that the institution must ensure that the information—
• Is used solely to support making direct payments of title IV, HEA program funds and not for any other purpose; and
• Is not shared with any other affiliate or entity for any other purpose.
We have also revised § 668.164(f)(4)(i)(A) to state that, under a T2 arrangement, the institution must ensure that the student's consent to open the financial account is obtained before the institution provides, or permits a third-party servicer to provide, any personally-identifiable information about the student to the financial institution or its agents, other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37.
Several commenters who objected stated that this provision would slow the speed with which students are able to receive their title IV funds and that this provision would create more administrative burden for institutions, financial institutions, and third-party servicers in delivering credit balances to students. Other commenters also stated that this provision disproportionally disadvantaged unbanked students and students who do not currently have a preexisting bank account by delaying their access to title IV funds.
Several commenters contended that requiring institutions to obtain consent would greatly increase administrative burden. One commenter in particular noted that, while they supported the provision generally, the regulatory language suggests that a school must obtain the consent from a student to open an account, even if the student has already provided consent to the third-party servicer or a financial institution. This commenter suggested that requiring a school to obtain consent could confuse students. The commenter requested that we clarify that a third-party servicer or financial institution is able to obtain the consent necessary to receive an access device.
Finally, several commenters suggested that existing laws and regulations make
We also acknowledge the commenter's concerns that this provision would disproportionally disadvantage students without existing bank accounts by delaying their access to title IV funds. However, we do not feel that this provision creates a significant disadvantage since students will still be able to obtain an access device after providing consent to open an account. Institutions may time their student choice process so as to accommodate these students.
With regard to the comment that the proposed regulations implied that the institution, not the third-party servicer or financial institution, would have to obtain consent to open a financial account before sending an access device, we note that this was not our intention. We have revised § 668.164(e)(2)(i)(A) and § 668.164(f)(4)(i)(B) of the final regulations to clarify that a third-party servicer or financial institution can obtain the consent before sending an access device. We believe this also addresses the commenters who raised concerns about administrative burden for institutions. However, we note that institutions are responsible for ensuring that a process is in place to obtain consent before an access device is sent.
We respectfully disagree with the commenters that argued that sufficient consumer protections already exist in current law or in other provisions of these regulations that render this provision unnecessary, especially in light of adoption rates ranging from 50 percent to over 80 percent at some institutions.
Finally, one commenter suggested that, while they agree with the provision, third-party servicers and financial institutions should be allowed to collect the consent needed to validate an access device that is also used for institutional purposes, arguing that forcing the institution to do so creates unnecessary administrative burden.
We also acknowledge that this provision may allow an institution and its third-party servicer or financial institution to send unsolicited access devices that also function as school ID cards before a student consents to open an account. One possible approach to this circumstance would be to prohibit an institution from sending a student ID with an inactive access device and effectively require institutions and their third-party servicer or financial account provider to send a second student ID with an activated access device only after the student consents. As we explained in the NPRM, we recognize the costs to institutions with mandating such a framework and therefore declined to require this two-step process in the regulations. Nevertheless, we note that financial institutions must still comply with consumer protection rules regarding unsolicited access device issuance (as set forth in Regulation E, 12 CFR 1005.5).
We disagree with the commenter who requested that we ban all cobranding on access devices used for institutional purposes. Our concern with respect to these arrangements is the effect of cobranding on a participating institution's discharge of its responsibilities for delivering title IV funds. The related requirements in the regulations are tailored to that purpose.
Finally, as with the provision requiring institutions to obtain consent to open an account before sending an access device, we have clarified that a third-party servicer or financial institution can collect the consent required prior to validating an access device that is also used for institutional purposes.
Some commenters also expressed concern over transparency, and other risks of duplicative or conflicting requirements. One commenter stated that standard banking disclosures are sufficient to inform students of the terms and conditions of an account and asked that we strike this requirement entirely. Another commenter stated that transparency was already in the best interests of the financial institutions as they compete for business. Another commenter contended that requiring disclosures for only accounts offered under T1 or T2 arrangements would not be helpful or transparent for students since they would not receive comparable information regarding check fees or preexisting financial accounts. Finally, one commenter suggested that requiring these disclosures may inadvertently compel institutions to market these accounts to students.
Commenters also stated that there may be insurmountable difficulties in delivering these disclosures in certain situations. For example, some commenters noted that, for a student opening a bank account at a financial institution prior to enrolling in an institution of higher education, it would be impossible to give that student the disclosure, as the financial institution would not know that the prospective accountholder was planning to become a student at an institution where a T1 or T2 arrangement exists.
Other commenters expressed concerns with the process of developing the disclosures. One commenter expressed disappointment that a prototype of the disclosures was not included in the NPRM. Other commenters opposed the creation of a disclosure form without notice and comment rulemaking. One commenter expressed concern that the NPRM did not elaborate on what would constitute a “commonly-assessed fee” and how we would determine which fees would be included in the disclosure. Another commenter asked that we create a consumer-friendly and consumer-tested format for these disclosures, and that the Department seek feedback from students, families, and other groups when developing the form in a process similar to the development of Truth in Lending Act disclosures for private student loans.
One commenter stated that the Department should ensure that there is adequate time for financial institutions to develop and begin delivering disclosures to students.
However, several commenters noted that they supported the idea of increased transparency for students and the creation of the new disclosures. One commenter in particular requested that the Department create a database containing all of the disclosures collected from financial institutions with T1 or T2 arrangements.
Finally, one commenter noted the importance of disclosing the manner in which a financial institution calculates overdrafts in the forms, including the order in which transactions are processed, the maximum number of overdrafts that can be charged in a day, any exceptions to the overdraft fee, sustained overdraft fees and the number of days before that fee is charged, and alternatives to overdraft fees.
We disagree with the commenter who stated that the disclosures would not be helpful because different institutions and different students have different needs, and we believe the nature of these disclosures will make it easier for students to determine whether the accounts meet their needs, since the information will be presented in a standardized way.
We continue to believe that clear, short-form disclosures are necessary for students to make informed choices regarding financial accounts opened for deposit of title IV funds. For the reasons expressed in the NPRM,
We disagree with the commenter that stated that these disclosures would not be helpful to students since they do not receive comparable information for other account options. Because accounts are marketed specifically to students through T1 and T2 arrangements by institutions of higher education that participate in the title IV, HEA programs, we believe that a higher standard of disclosure is required to ensure that students are informed of the terms and conditions of the account before the account is opened, enabling them to make the choices best suited to maximizing the value of their title IV awards. We also disagree that objectively disclosing the terms of the accounts in the selection menu constitutes marketing by the school or the financial institution because the information is given as a standardized disclosure of consumer information and a student's own bank account is required to be the first, most prominent choice in the selection menu.
We thank and agree with the commenters who stated that it would be impossible for financial institutions to guarantee that students receive disclosures in cases where students open an account at a location outside the selection menu, such as at a bank branch. In response, we would like to note that these disclosures only have to be made in the selection menu in order for institutions to meet the requirements of § 668.164(d)(4)(i)(B)(
We understand the concerns of the commenters who would have preferred for the forms to be published as part of the NPRM. However, because some of the accounts will be subject to CFPB disclosure requirements, we believe it is crucial to ensure that the student choice disclosures for those accounts dovetail with the CFPB's requirements once finalized to avoid confusion. When the Department's disclosures are developed, they will be published in the
We agree with the concern that there may not be enough time for institutions to implement this requirement given that the disclosures have not yet been developed. For this reason, we have delayed implementation of this requirement to July 1, 2017.
We thank the commenter who suggested that we create a database of these disclosures. However, we believe that this is contrary to the purpose of the disclosures. The disclosures are meant to be given to students at the time they select an account for title IV purposes to ensure that they understand the features and fees associated with the account. We believe that creating such a database would not be consistent with this function and may in fact cause unnecessary confusion for students.
We thank the commenter who asked that we use consumer-testing and seek feedback from student and families. However, since we intend to work closely with the CFPB to mirror their consumer-tested forms and since we will subject the disclosures to publication in the
Finally, we thank the commenter who asked that we require institutions to disclose the manner in which overdrafts are calculated. We will take this feedback into account as we work to develop the disclosures.
Several other commenters opposed the proposed limitations on fees, arguing that student choice was a sufficient protection, and students affirmatively choosing to select a particular account will have a reasonable understanding of the fees associated with that account. These commenters also argued that the fee limitations would increase costs and burden on institutions and financial account providers because they would limit the costs that could be assessed to accountholders for the convenience of utilizing the accounts. Some commenters argued that limitations on fees would discourage responsible behavior on the part of accountholders—specifically, that learning to deal with account fees is part of becoming a responsible accountholder.
Some commenters also expressed support for the existing provision, maintained in the proposed regulations, that prohibits a fee for opening an account.
Commenters also submitted numerous additional recommendations specific to the individual fee provisions. We discuss those comments in subsequent sections of the preamble.
We disagree with those commenters who argued that the fee limitations are unnecessary. We discussed in great detail our reasons for proposing to limit fees in the NPRM, and we believe the comments generally support those limitations.
We agree with the commenters who argued that the proposed provisions will limit the ability of institutions and financial account providers to pass the costs of administering the title IV, HEA programs on to students. While we have allowed a reasonable fee structure to remain in place, an important impetus behind this rulemaking was a recognition that too many institutions were passing along the costs of administering financial aid programs to the aid recipients through these arrangements and generating artificial demand for otherwise uncompetitive financial accounts. This also resulted in the financial account providers profiting at students' and taxpayers' expense. In light of the fiduciary role of institutions as stewards of the title IV, HEA programs, we believe that this institutional cost shifting is an impermissible development and that students should not be in the position to pay significant, unavoidable, and misleading costs as a prerequisite to obtaining their Federal student aid.
One commenter described student ID cards as primarily serving an institutional need and only including payment functionality as an “incidental” mechanism. The commenter expressed concern that under the account-opening fee provision, schools could not charge students to obtain these cards, resulting in a lack of funding for other programs. The commenter also expressed concern that this provision would prohibit charging a student for replacing an ID card.
Another commenter noted that a fee normally charged for opening a student ID card is allotted to a “campus access control system,” and eliminating the fee would result in less robust campus security.
Both commenters recommended that the Department exclude student ID cards from the provision prohibiting fees for account opening.
Existing § 668.164(c)(3)(iv) requires that an institution ensure that the student does not incur any cost in opening the account or initially receiving any type of debit card, stored-value card, other type of [ATM] card, or similar transaction device that is used to access the funds in that account. We have retained this existing requirement in the final regulations—specifically, § 668.164(e)(2)(iv)(B)(
It appears that the commenters' concern derives from the use of the term “access device.” However, this term is distinguished in the regulations from “a card or tool provided to the student for institutional purposes, such as a student ID card” (see,
While we intended this distinction in the proposed regulations and we are making no substantive change to the proposed regulations, we recognize that additional clarifying language will ensure that students are not charged a fee to open an account into which title IV funds will be deposited.
Some commenters expressed support for the Department's approach of providing more specificity for the term “convenient access” than exists under the current regulations, while still allowing sufficient flexibility to provide ATM access tailored to individual institutions. Other commenters requested that the Department provide additional detail, expressing concern that without explicit guidance, financial account providers would be reluctant to offer campus cards for fear of running afoul of the regulatory requirements.
Several commenters argued that the requirement for access to a national or regional ATM network was both unnecessary and economically infeasible. One commenter argued that the OIG report showed that ATM access at the reviewed institutions was not an issue and that students had sufficient access to funds. Other commenters stated that the ATM access requirements would prevent providers from offering cost-efficient services and the costs of providing a fee-free network would be passed on to students or result in financial firms exiting the campus financial products marketplace. Other commenters also contended that the ATM access requirements are unnecessary, arguing that cash is increasingly becoming an outmoded method of payment, especially among students.
Some commenters stated that the requirements for access to a national or regional ATM network should apply equally to T1 and T2 arrangements. One commenter also stated that solely applying the requirements to T1 arrangements demonstrated the Department's unjustified preference for preexisting accounts. Another commenter recommended that the requirements be applied to T2 arrangements to ensure that students have sufficient access to their student aid credit balances.
One commenter expressed concern regarding withdrawal limits and noted that for students with large credit balances, daily limitations on the amount of funds that can be withdrawn would effectively eliminate the convenient access requirements under the regulations. This commenter recommended that we provide a mechanism by which students have fee-free access to their title IV refunds throughout the payment period.
Several commenters expressed concern that the convenient access requirements would be difficult for campuses located in rural, less populated areas. These commenters argued that ATMs have relatively high maintenance costs (one commenter stated that these costs are $20,000 to $40,000 per year), making it economically infeasible to install an ATM at those locations. Most of these commenters suggested that the Department establish a safe harbor providing a minimum number of students before the ATM access requirements would apply at a location; however, no commenters provided a recommendation for such a numerical threshold or justification for a particular number of students. Another commenter suggested that the Department should, rather than quantifying a required threshold for ATM access, evaluate each school on an individual and ongoing basis to ensure that students had sufficient ATM access. Other commenters recommended that we simply remove the convenient-access requirement from the regulations.
Some commenters noted that ATM access provided to accountholders in the general financial products marketplace rarely includes international access to ATMs. These commenters recommended that the provision governing convenient access to ATMs apply only to domestic ATM access.
Some commenters also noted that certain ATMs provide functionality unrelated to more traditional banking services, such as purchasing postage or other services. These commenters recommended we limit fee-free access to the more traditional banking services.
Finally, some commenters stated that out-of-network ATM fees are instrumental in recovering the funds lost in allowing out-of-network activity. These commenters recommended that the Department not prohibit fees charged for out-of-network ATM access for students.
We also appreciate commenters' recognition, discussed during the negotiated rulemaking, that the Department has provided more specificity to the meaning of “convenient access,” while still recognizing that different institutional profiles require that we provide flexibility for account providers to meet this requirement. While we appreciate the request from some commenters that we provide even more detail, we believe that, by setting a clear standard without specifying one particular method by which providers ensure there are sufficient funds available, we take a balanced approach that recognizes the challenges of serving a varied higher education market.
In general, we disagree with commenters who claim access to a regional or national ATM network is unnecessary and economically infeasible. As described by the GAO report, and not disputed during negotiations by those representing financial institutions and servicers, the common approach in the financial products market is to provide a network, either regional or national, of surcharge-free ATMs. Even third-party servicers who, for some product offerings, restrict surcharge-free access still provide broader network coverage for a flat monthly fee, indicating this requirement should be feasible for providers.
As discussed in a prior section we have, however, limited the ATM requirements applicable to T2 arrangements at institutions where the incidence of credit balances is
With respect to the commenter who expressed concern that students would not have sufficient access to their title IV aid due to withdrawal limits, we believe this concern, while well-intentioned, will have limited practical impact because of the other regulatory provisions. Most relevant are the changes we describe in the section discussing the NPRM's 30-day fee restriction (discussed subsequently), which we proposed in part to address the situation described by this commenter. We believe that by providing students a method to withdraw a portion or the entirety of their aid free of charge students will be ensured sufficient access to funds to cover educationally related expenses. We also believe that the requirement for neutral presentation of account information will allow students to make an account choice that further limits the negative circumstances the commenter describes. Similarly, we see no utility in regulating for a cash-free economy that does not yet exist, at a time when cash remains a convenient means of exchange readily accepted from and usable by all students.
We recognize the merit of commenters' concerns about providing ATM access to all institutional locations, especially those with few title IV recipients. While we do not agree with the cost estimates provided in the comments—especially for ATMs located in less populated areas
We believe that § 668.164(e)(2)(viii) and (f)(4)(viii), which govern the best interests of accountholders, will enable institutions to ensure they are complying with this provision. If there continues to be “runs” on fee-free ATMs, or if students are forced to incur an abnormally high number of out-of-network ATM fees, or if the institution receives complaints about the number and location of its ATMs (all indicators that were cited in consumer and
It is also our expectation that, in practice, student access to a national or regional ATM network required under T1 arrangements will compensate for the absence of ATMs at very sparsely attended locations and will help bolster the number of fee-free ATMs at highly attended locations where market demand would be met by ATMs provided by a national or regional network. We believe that this approach will obviate the need for the Department to conduct ongoing monitoring of ATMs at each institution, which we think is unworkable. Instead, we think that periodic compliance reviews, in combination with access to fee-free ATM networks, will significantly improve student access to ATMs.
We also agree that fee-free international ATM access is not a common feature of the financial products marketplace, and we are accepting the commenters' suggestion that we limit this provision to domestic ATM access. In addition, we clarify that it was our intent to limit this provision to the basic banking functions of balance inquiries and cash withdrawals, and we did not intend to include more atypical or nonfinancial transactions.
Finally, we recognize that out-of-network ATM fees are both a common feature of the market and necessary in recovering the costs of providing access to such ATMs. While we never prohibited the owners of ATMs from assessing fees, we proposed to limit the imposition of an additional fee by the
Some commenters suggested broadening the provision to ban all fees that serve to steer accountholders to a particular type of payment network. One commenter also explained that evolving payment systems may lead to additional, unforeseen fees that should be covered in the POS fee provision. This commenter recommended that the Department prohibit “any discriminatory cost . . . for the use of any particular electronic payment network or electronic payment type.”
One commenter noted that it is customary practice for banks to charge per-purchase transaction costs for international purchases and recommended that we limit the POS fee prohibition to transactions conducted domestically.
As we stated in the NPRM, most campus cards are portrayed as debit cards (or having functionality more similar to a debit card than a credit card) and students are therefore likely to misunderstand that selecting a “debit” option is not required to complete a transaction, or that doing so would result in a fee.
While we appreciate the principle underlying commenters' recommendation to expand this prohibition, we continue to believe that doing so to include T2 arrangements is unwarranted at this time. For the reasons discussed at length in the NPRM and reiterated in the section discussing fees generally, we believe it is appropriate to apply the fee restrictions only to T1 arrangements. Because POS fees are not charged by traditional banking entities
We acknowledge the commenter's interest in protecting students against unforeseen fees that may become established as technology progresses and other payment methods gain widespread use. Throughout the negotiated rulemaking process, we received a significant amount of feedback emphasizing that the financial products marketplace is changing and will continue to change rapidly. We have made a significant effort throughout this rulemaking process to protect student aid recipients and safeguard taxpayer dollars, while remaining mindful of possible unintended consequences, such as the restriction of technological progress. We believe we have struck a balance in the regulations that will allow students the opportunity to make an individualized choice of account option with sufficient protections, while giving account providers flexibility to develop new student-friendly payment methods.
The commenter's suggested language to prohibit all unanticipated fees is well intentioned, but we believe it is overly broad. We believe that it would be infeasible to determine the
Finally, we agree with the commenter that international per-purchase transaction fees are a common characteristic of financial products, and it is reasonable for students to expect those fees. We are therefore altering the POS fee prohibition to reflect that it will apply only to domestic transactions.
Multiple commenters stated that the overdraft fee limitation should extend to students with accounts offered under T2 arrangements as well, arguing that the dangers of overdraft fees for T1 arrangements are equally present in T2 arrangements.
In contrast, other commenters argued that overdrafts represent a benefit to accountholders. These commenters argued that overdrafts (and their associated fees) represent a protection, allowing recipients to utilize the overdraft feature in the case of an emergency, which would be impermissible with the overdraft fee limitation. These commenters also stated that the proposed fee limitation ignores current regulatory procedures (including Regulation E and Regulation DD) that require accountholders to opt-in to enable overdrafts and the related fees. These commenters argued that overdraft fees are common to the banking market and that it would be operationally difficult to apply a particular fee limitation to a subset of accountholders. For these reasons, these commenters recommended removing the limitation on overdraft fees in the regulations.
Some commenters suggested that the regulations specify that the overdraft fee limitation does not apply to bounced checks or Automated Clearinghouse (ACH) over-withdrawals. Another commenter asked for clarification on whether the provision only applies when the student is using a card or if it applies to any transaction that exceeds the balance of the financial account. Another commenter requested clarification as to whether schools would automatically violate the provision if a student with pre-approved overdraft services retains his or her account when enrolling.
That commenter also stated that the term “credit card” is not defined in the proposed regulations, and suggested that we clarify that the provision does not apply to financial institutions when they are marketing credit cards outside of a T1 or T2 arrangement. Finally, the commenter recommended that we clarify that the provision does not apply to linking an account to a credit card for the purpose of making credit card payments or covering insufficient funds when a credit card product is opened under a mechanism separate from the depository account.
We also received a limited number of comments from a financial account provider and its payment processer that currently offer a financial product that does not allow overdrafts or charge any related fees. These comments were more technical in nature and laid out a set of scenarios where the proposed regulations would create significant operational difficulties for the functioning of their voluntary prohibition on overdrafts. While the commenters' specific accounts prevent accountholders from exceeding the balance in their accounts, the commenters pointed out that there are circumstances where an overdraft of the account is unavoidable. The simplest iteration is force-post transactions (where a matching authorization is not received prior to the settlement of the transaction, often when a merchant authorizes a transaction but does not settle it with the issuer until a later date). An example of such a transaction would be if an accountholder has sufficient funds to charge a restaurant bill and the transaction is therefore approved, but the accountholder adds a tip after the transaction is approved that exceeds the remaining account balance; when the transaction processing is completed, the accountholder has a negative balance. The commenters stated that the financial account provider is unable to know of these circumstances at the point of the transaction is approved and thus cannot deny the initial transaction without overly onerous transaction-denial practices (
These commenters identified three other types of situations where similar circumstances exist: Stand-in processing (where the amount charged cannot be determined due to a communication error between the account provider and the transaction processer but the parties have an agreement for a limited pre-approved charge amount); batch processing (when transactions are not approved in real time but are instead “batched” and approved in 24-hour increments or a similar time period); and offline authorizations (where a communication error occurs in the merchant's system, the merchant nevertheless accepts the charge but the payment cannot be reconciled by the issuer or account provider at the moment of the transaction, so the accountholder's balance will not accurately reflect the balance or prevent future overdrafts). In all of these cases, the commenter noted, the overdraft is inadvertent on the part both of the account holder and the account provider, and a product of the operational realities of the payment processing system common to financial accounts. For the commenters' customers, no fees are charged to the accountholder for these overdrafts.
The commenters noted that while we acknowledged these scenarios in the preamble to the NPRM, we did not create an exemption for these technical limitations. They encouraged the Department to create an exception for these limited, more technical overdrafts without changing the overall structure of the overdraft fee limitation, arguing that in the absence of such an exception they would not be able to offer accounts that already disallow overdrafts and related fees.
The facts supporting the overdraft fee limitation were not sufficiently rebutted by commenters who recommended that we eliminate the limitation. Contrary to commenters' arguments, we believe a financial institution that charges accountholders a fee that often far exceeds both the cost of the underlying transaction and the cost of providing the service itself is not providing a benefit, especially when the charge can be denied prior to a cost being incurred. The evidence that some account providers purposefully reorder transactions to maximize overdrafts fees helps persuade us that charging overdraft fees in general is simply a way to extract the maximum amount of fee revenue from accountholders, rather than serving as a benefit to accountholders.
While we acknowledged in the NPRM that, under other Federal regulations, an opt-in is required before overdraft charges are assessed, the research we cited
With respect to commenters that stated it would be operationally difficult to apply the overdraft fee limitation to a subset of accountholders, where an institution and a financial account provider choose to voluntarily enter into a contract that gives rise to a T1 arrangement but nevertheless regard this operational hurdle as impossible to overcome, we believe that one alternative would be to offer title IV recipients at the contracting institution a standalone bank account that complies with the requirements for T1 arrangements. For a further discussion of this issue, please refer to the discussion under the section discussion T1 arrangements generally.
However, we decline to expand the overdraft provision to T2 arrangements for the same reasons we are not expanding the other fee-related provisions applicable to T1 arrangements. As we discuss in more detail in the other relevant sections of this preamble, we believe that expanding the fee provisions as commenters suggested would collapse the distinction between T1 and T2 arrangements and would not properly reflect the respective levels of control over the disbursement process and risk presented by different types of arrangements.
With respect to commenters' questions regarding what types of practices are included in this overdraft limitation, the text of the regulations make clear that it is any transaction that causes the balance to be exceeded, whether completed at an ATM, online, or with a physical card or access device. However, it was not our intent to include bounced checks or inbound ACH debits (
We appreciate the detailed comments laying out the specific circumstances under which overdrafts are unavoidable as an operational matter even for products that do not allow accountholders to overdraft. We are persuaded that there are circumstances outside the control of both the accountholder and financial institution in which inadvertently authorized overdrafts can occur. We also understand that these circumstances are relatively limited in nature, are all characterized by the fact that the overdraft cannot be preempted, and do not prevent the financial account provider from preempting the more typical and more harmful overdrafts that occur when the transaction exceeds the account balance at the time of authorization. Most importantly, accountholders are not charged a fee for these transactions. In these instances, the accountholder would be informed that they have exceeded the balance on their account when the student checks their account balance, the financial institution notifies the student (such as through text message), or when a subsequent transaction is rejected, and would therefore be quickly informed that additional funds should be deposited on the account without incurring a fee. Permitting these inadvertently authorized overdrafts would also allow the account provider to continue offering its present services. We are persuaded that it is reasonable and practical to allow for a limited set of circumstances in which accounts may exceed the remaining balance, but do not result in fees imposed on students. We were initially concerned that negative balances arising from inadvertently authorized overdrafts would result in inquiries and negative ratings on accountholders' credit bureau reports. However, following conversations with the CFPB, we believe these concerns are not sufficient to disallow this practice. Based on these conversations, we believe that credit bureau reporting would be unlikely, both because financial account providers would be unlikely to report them, and because accountholders, in most cases, would be able to easily replenish the negative balances on their accounts. Even in the event of credit bureau reporting, the amounts in question are so small that it would be relatively easy to cure such a negative report.
For these reasons, we are establishing an exception for the overdraft limitation where, in the case of an inadvertently authorized overdraft (specifically, force-post transactions, stand-in processing, batch processing, and offline authorizations), it is permissible for an
For accounts that are offered under a T1 arrangement, such accounts would have to be in compliance with the overdraft provision on or before the effective date of the final regulations. We also note that accounts offered under T1 arrangements would have to comply with this provision regardless of whether the student has already elected to receive an account with overdraft services.
We believe the term “credit card” is sufficiently clear—the credit card prohibition has long been part of the cash management regulations and, to our knowledge, has not caused any confusion. For accounts that link a preexisting credit card or a credit card that is opened in a distinct process and that complies with existing credit card regulatory and statutory requirements, we do not believe that credit is being extended to the account offered under a T1 arrangement and therefore the overdraft limit is not at issue. In this circumstance, the credit is being offered under a distinct product and account that must comply with separate banking and credit card requirements.
Several commenters argued that this provision would ultimately harm students. These commenters suggested that a 30-day window would provide strong incentives for students to spend their funds more quickly than they otherwise would, encouraging irresponsible spending at the expense of building good savings habits. These commenters also suggested that because such a provision is so at odds with normal banking practices, it would be counterproductive from a financial literacy standpoint because it would not paint a realistic picture of the banking options students will have upon graduation.
Many commenters presented operational concerns about the 30-day fee restriction, arguing that tracking separate, perhaps overlapping 30-day timeframes for multiple disbursements would be overly complex and expensive. These commenters noted that some disbursements to financial accounts contain title IV funds, but others do not, or may contain a combination of Federal funds, State funds, and private or institutional funds. The commenters asserted that the difficulty associated with separately identifying and tracking a 30-day period associated with only certain disbursements vastly outweighs the benefits provided to the student. Some commenters also noted that for institutions that offer FWS funds or make multiple disbursements within a payment period, additional disbursements may occur more frequently than every 30 days. They noted that for these institutions and their title IV recipients, such a circumstance would effectively create a perpetual fee prohibition. They noted that this may have the unintended consequence of discouraging institutions from experimenting with methods involving multiple, smaller disbursements.
Some commenters noted that the underlying purpose of this provision was to provide students a reasonable opportunity to access their title IV funds free of charge, and contended that by providing ATM access and banning POS fees and overdraft fees, the Department had already met that goal. These commenters also asserted that this provision in particular runs contrary to the Department's goal of allowing a reasonable fee structure to remain in place to support the continued viability of account offerings, as account providers generally incur some costs. A few commenters in particular recommended that as an alternative to the Department's proposal, students should have a method by which to access their funds without charge, and without regard to a time period.
One commenter suggested that we expand the time period for access to funds for the entire payment period, to ensure that the student is able to withdraw their funds without fees at any time. Another commenter suggested that 30 days is too long and that the time frame should be changed to 14 days. Some commenters argued that this prohibition is necessary to ensure students have fee-free access to their accounts when it is most likely that title IV funds will be present. Other commenters noted that this provision would be less beneficial to the student than intended, because it assumes that the student knows and is able to keep track of when the 30-day window begins and ends. These commenters stated that students may incur fees, believing they are still protected when in fact the relevant time period has elapsed.
Commenters correctly pointed out that, as proposed, the provision allows students to conduct unusual or ancillary transactions that would incur a fee under nearly all typical banking arrangements. Commenters are also correct that for some students and some institutions, multiple frequent disbursements would create a situation where an account provider is effectively prohibited from charging any fees at all. These outcomes are inconsistent with our intent. We acknowledged throughout the NPRM that we believe account providers delivering services beyond simple delivery of credit balances should be allowed to charge reasonable fees to provide student banking products.
We are also persuaded that the time-based structure of the proposed provision is impractical for operational reasons. We agree that tracking
Nonetheless, we continue to agree with the commenters who recommended that we provide a mechanism by which title IV recipients can have reasonable, fee-free access to their student aid. As an alternative to our proposed provision, we are instead requiring that under a T1 arrangement, students must be provided with convenient withdrawals to access the title IV funds in their account, up to the remaining balance in their account, in part and in full, at any time without charge for the withdrawal.
From the student perspective, we believe this approach is an improvement. It maintains the overarching goal that aid recipients have fee-free access to withdraw their title IV funds, up to the remaining balance in the account. It relieves students and financial institutions of having to keep track of a 30-day period, limits confusion about why fees are charged at certain times but not others, and no longer forces students to spend or withdraw their funds more quickly than they might want or actually need to. It ensures that at any time, even more than 30 days following a disbursement, a student can still have full access to his or her funds, up to the remaining balance in the account, without a fee charged for the withdrawal.
From the perspective of financial account providers, we also believe this approach is an improvement. We believe it addresses all commenters' concerns, especially regarding the effective blanket prohibition on all fees and the operational burdens of having to track 30-day windows for multiple disbursements and determine whether such disbursements trigger the requirement. Instead, providers will have to determine at least one method by which the aid recipient may withdraw or use his or her title IV funds, up the remaining balance in his or her account, in whole or in part, without charge. For example, a more traditional bank may find it more feasible to allow fee-free withdrawals from a local branch location. Another provider may instead allow unlimited fee-free withdrawals from in-network ATMs without daily or monthly withdrawal limits. This also limits the burden on financial account providers of having to track the source of the funds deposited into the account and determine whether those funds stem from title IV aid programs or originate from another source. The basis of the limit will be the total title IV dollars deposited—
This approach will also address commenters' concerns (addressed in the section of the preamble discussing ATM access) that limits on ATM withdrawals will limit the effectiveness of that provision. This provision would require that the provider either eliminate such withdrawal limits or provide another convenient method for students to access their title IV funds.
However, some commenters raised concerns about the provision. Several commenters noted that the posting of a lengthy legal document would do little to inform students about the arrangement between an institution and a third-party servicer or financial institution. Another commenter suggested that students already have enough information to make an informed decision, rendering the disclosure of the contract and summary unnecessary. Some commenters suggested that, rather than posting the full contract, we should consider simply requiring institutions to post a statement informing the public that an arrangement exists between the institution and third-party servicer or financial institution. Another commenter suggested that we require disclosure of the contract data only and not the publication of the full contract. One commenter also expressed concerns that this requirement may be duplicative of some State laws.
Other commenters raised concerns about the effect the posting of the full contract may have on their business models. For example, some commenters argued that this requirement, even with the option to redact information regarding personal privacy, proprietary information technology, or the security of information technology or of physical facilities, would still require third-party servicers and financial institutions to disclose confidential business information that could damage competition in the marketplace. One commenter contended that the proposed allowable redactions did not allow third-party servicers or financial institutions to redact proprietary business information. Another commenter asserted that one unintended consequence of this could be that financial institutions would be less likely to enter into specialized deals with institutions. One commenter stated that the release of this information raises antitrust concerns that could conflict with the Federal Trade Commission's restrictions on price fixing.
We disagree with the commenters who stated that disclosure of the full contract would not help inform students about the terms and conditions of T1 and T2 arrangements. A common criticism of these agreements between institutions and financial institutions is the lack of transparency, and we believe that posting the full contract will allow all interested parties to review these agreements and ensure that the terms of T1 and T2 arrangements are fair for students.
We also disagree with the commenters who stated that a summary of the contract would be sufficient for consumer information purposes. The contract data, while helpful, will not allow interested parties to view the agreement as a whole and will not be available at all institutions with T2 agreements. We are also concerned that the required disclosures in the summary alone will not allow students, researchers, and policymakers to understand the entire scope of the agreement. A summary by its nature is selective, and we do not agree that it would enhance competition or work to prevent abuse to allow those parties broad discretion to decide which terms will be made public and which will not.
We disagree with the commenter who suggested that students already have enough information to make an informed decision. As stated elsewhere in this preamble, because these financial products are so specifically targeted to students, and because the title IV disbursement system creates unique consumer protection challenges, we believe that this additional disclosure, specific to the title IV context, is necessary.
While we recognize that certain institutions are subject to very strict State “sunshine” laws that similar to these requirements, we note that not all institutions are subject to those laws, and that even where they apply, the difficulty interested parties face in attempting to access these contracts varies by institution. For the sake of consistency, we believe it best to ensure that these disclosures are adopted uniformly across all institutions that receive title IV aid and have T1 or T2 arrangements with third-party servicers or financial institutions.
We disagree with the commenters who stated that disclosures of contracts with only specific information redacted would result in decreased competition. We continue to believe that disclosures of this type increase competition, and in the absence of very specific recommendations regarding other types of information that should be redacted from the contract posted to an institution's Web site, we have made no changes to the types of information that may be redacted from a contract.
We disagree with the commenter who suggested adding proprietary business information to the list of allowable redactions as we believe that the reference to “proprietary information technology” addresses this concern in part. In addition, we believe that “proprietary business information” is too broad a term and that, if added, it could undermine our efforts to ensure transparency of T1 and T2 arrangements.
While financial institutions may no longer enter into special or unique agreements with institutions, this is a decision that will lie with financial institutions. Financial institutions will have the option to decline to offer the same arrangement to every institution if they wish. However, we agree with the commenter who stated that posting these agreements may encourage new providers to enter the market. With more than one provider offering services to an institution, access to this information could allow new providers to offer more competitive deals to institutions.
We also disagree that the posting of contracts governing T1 and T2 arrangements could result in price fixing or antitrust concerns, especially since other Federal laws already require the disclosure of contracts for public review. For example, the Credit CARD Act of 2009 requires institutions to “publicly disclose any contract or other agreement made with a card issuer or creditor for the purpose of marketing a credit card.”
Many commenters expressed concerns about how institutions would calculate the data required in the disclosure. Specifically, commenters asked how institutions could calculate the number of accountholders and the mean and median of the actual costs incurred by those accountholders, especially in cases where a student opened a bank account before choosing to enroll in an institution. One commenter noted that universities do not typically track the costs of the accounts their students use. Other commenters stated that it would be difficult for financial institutions to know who is and is not a current student at an institution without a list of current students. These commenters also pointed out that this list would have to include personally identifiable information about those students in order to ensure that the calculations are accurate. Another commenter stated that tracking costs becomes even more difficult in cases where the accountholder has received a parent PLUS loan. One commenter also stated that calculating the mean and median costs would be impossible without defining which costs must be included in that calculation. Another commenter expressed concerns that inactive accounts or accounts that are used for short periods (such as a semester) could skew the data and that publishing fee information violates a student's privacy.
Other commenters expressed concerns that the statistics disclosed may not be helpful. Specifically, one commenter stated that information about whether or not a school receives remuneration under the contract would not be likely to impact a student's decision whether or not to open a financial account. That same commenter, along with others, stated that the size of the student population, the differing needs of students at different types of institutions, and the behavior of accountholders could result in higher or lower fees, rather than reflect the behavior of a financial institution. One commenter stated that because these data only contain information about one account, they lack context for students to be able to evaluate the information most effectively. Other commenters stated
We disagree with the commenter who asked us to remove these requirements because institutions do not typically track this information and who concluded that compliance with this provision would be too difficult. While we believe that the parties will be able to design their T1 or T2 arrangement to allow a third-party servicer or financial institution to perform this type of tracking, we have chosen to exempt institutions from this requirement in cases where on average less than 500 students and five percent of the total number of students enrolled at an institution with a T2 arrangement receive a credit balance for reasons discussed earlier in this preamble. In response the commenter who asked whether previously opened accounts should be counted, we note that accounts that are not opened under a T1 or T2 arrangement are not included in the contract data.
We acknowledge the concerns about how to calculate the number of accountholders and mean and median costs associated with accounts offered under T1 and qualifying T2 arrangements. However, in a T1 arrangement, the third-party servicer will know which accounts are opened under the student choice process and can communicate that information to the account provider (if the two are different entities), so that the account provider under a T1 arrangement will know which individuals and accounts to track for purposes of determining and disclosing this data. Institutions with a sufficient number of credit balance recipients and financial account providers entering into a T2 arrangement will need to include in their contracts a mechanism for meeting these requirements. For example, the terms of the contract may include requirements that the institution keep the account provider apprised of the names and addresses of its currently enrolled students, and the institution would include this sharing of directory information in the directory information policy it is required to publish under FERPA.
We agree, in part, with the commenters who stated that it would be impossible for financial institutions to know that an accountholder is a student at an institution without sharing student information. However, we disagree that the information would have to include personally identifiable information that is protected under FERPA. The final regulations do not preclude sharing of directory information, as well as, for accounts offered under T1 arrangements, the sharing of the specified information necessary to authenticate the of students. Additional information may be shared with these account providers following the student's selection of the account in the student choice process, wherein an institution will know the students who chose to open an account offered under a T1 arrangement. In the case of T2 arrangements, the institution may periodically provide to its partner financial institutions a list of currently enrolled students that includes directory information. We believe that student directory information will provide a financial institution with enough information to calculate contract data for enrolled students.
We agree with the commenter who noted that tracking parent PLUS loans that are deposited into parent accounts would be particularly difficult. In response to these concerns, we have removed the references to parents in § 668.164(e)(2)(vii)(C) and (f)(4)(iv)(C).
We disagree with the commenter who stated that tracking the costs incurred under accounts offered under T1 or T2 arrangements will be impossible without a list of costs to be included. Because of the changing nature of the marketplace, we believe that it is best for all fees incurred by accountholders to be included in the contract data. While some accountholders may incur unusually high fees, this should be offset by a higher number of more moderate users; there is no basis for presuming this factor will unfairly affect one provider's accounts more than another. We also believe that if there are a high number of students incurring large amounts of fees and charges, it may be indicative of a larger issue at the institution that should be disclosed.
We agree with the commenter who stated that inactive accounts or accounts open for a short time could skew the mean and median fees incurred. However, we believe that the changes to § 668.164(e)(3) and (f)(5) stating that the requirements of this section, including the reporting requirements, cease to apply when the accountholder is no longer a student addresses the issue of inactive accounts.
We do not agree that data from accounts opened for a short time are necessarily less relevant consumer information than those from accounts opened for a longer time period. For example, arrangements for some schools may serve otherwise unbanked students who attend an institution for a short period of time and then withdraw, closing their accounts in the process. It may be useful for such students to have data from students like them incorporated into the consumer information. There is no reason to regard that group of students as uniquely atypical.
We agree with the commenter who stated that the publication of fee information in the form of contract data raises privacy concerns. In the final regulations, we require that an average of at least 500 title IV credit balance recipients or five percent of the total number of students enrolled at an institution with a T2 arrangement have to receive a credit balance during the three most recently completed award years for these requirements to apply. However, we acknowledge that disclosing annual cost information could present privacy and data validity issues in cases where a small number of students enrolled at an institution during an award year open an account offered under a T1 or qualifying T2 arrangement. In these cases, the privacy of those students may be compromised because it may be possible to discern their identity or establish a picture of students' (or groups of students, such as low-income students) account behavior, especially if the mean and median fee figures were sufficiently divergent (suggesting a small number of students may be accruing particularly high levels of fees). In such cases, the validity of the data would also be at issue, given the small sample size.
In the unlikely event that a small number of students open an account at an institution with a T1 or qualifying T2 arrangement, we exempt institutions from disclosing contract data in cases where fewer than 30 students have the account in question. We have chosen an
We disagree with the commenter who opined that it is not useful to consumers to know whether or not the school receives remuneration under the contract. We believe that the knowing whether or not a school receives payment from a partnership with an account provider may well impact a student's decision to open a particular account. We believe this transparency will also dissuade institutions from using T1 and T2 arrangements to profit at students' expense and shift the cost of disbursement of title IV funds to students. We note that consumer advocates and Federal negotiators emphasized the importance of these data,
While we do agree with the commenter that students at different institutions may exhibit differing financial habits, resulting in higher fees, we also believe that the fees that students are charged to access their money reflect how well a third-party servicer or financial institution serves the student population, and how well an institution has analyzed students' best interests in entering into the arrangement. As a result, we feel that these disclosures are necessary for students and institutions to make financial choices that are consistent with the goals of the title IV programs. In addition, we believe that most interested parties will be able to take into account characteristics of the student body that may impact the data, such as socio-economic status or student background. For example, a community college researching these agreements will most likely look at data pertaining to other community colleges.
We disagree with the commenter who contended that because the contract data only cover accounts offered under T1 and T2 arrangements, and not the other types of accounts a student may choose, the contract data will not be helpful consumer information. As we have stated elsewhere in this preamble, we believe that the preferential status that a third-party servicer or financial institution receives from a T1 or T2 arrangement necessitates a higher standard of disclosure.
While it is possible that these requirements could result in account providers offering fewer services to students in order to keep costs low, we do not believe that that this outcome negates the benefits of these disclosures. We continue to believe that these requirements will result in students choosing better accounts and accordingly being able to access more of their title IV funds.
We disagree with the commenter who suggested that institutions that do not receive direct compensation as a result of their arrangements with third-party servicers and financial institutions should be exempt from these requirements. Because the benefits an institution receives are not always in the form of direct payments, and because a school-sponsored account may be less than favorable to students even if the institution does not profit from it, it is important to ensure that all forms of remuneration and the effects of these arrangements on students are disclosed.
We disagree with the commenter who stated that disclosing the fee schedules is enough to inform students of account terms and conditions. We continue to believe that disclosing the nature of the relationship between an institution and third-party servicer or financial institution is essential to ensure that students are both well-informed and not subject to abusive practices. We also continue to concur with the OIG on the point that institutions should be required “to compute the average cost incurred by students who establish an account with the servicer and at least annually disclose this fee information to students”
We agree that it is necessary for the Department to create a disclosure template for the contract data, and we will release that format at a later date. Standardizing the format of the contract data will not only improve the consistency and clarity of the disclosures, as suggested by commenters, but it will also enable third parties to more easily perform analyses on contract data. Specifically, standardizing the format will allow the contract data to be presented in a way that can be read by software and aggregated more quickly.
Finally, while we feel that the contract data provide essential consumer information, we understand that it will take institutions and their third-party servicers or financial institutions time to implement these requirements, and we have chosen to delay implementation of this requirement until September 1, 2017.
We have also changed these provisions to state that the contract data must be disclosed in a format established by the Secretary; and that this requirement will not apply at institutions with T2 arrangements where there are fewer than 500 title IV credit balance recipients and less than five percent of the total number of students enrolled at an institution receive a credit balance. In cases where fewer than 30 students have the account in question, an institution with either a T1 or T2 arrangement will be exempt from this requirement.
We have also added § 668.164(e)(3) and (f)(5), which state that the requirements of this section, including reporting requirements, no longer apply when the accountholder is no longer a student.
We have also clarified the regulatory language to state that institutions must comply with this requirement by September 1, 2017.
Finally, we have removed “and parents” from § 668.164(e)(2)(vii)(C) and (f)(4)(iv)(C).
We thank the commenters that expressed support for the database. While we do not yet have a target date for the creation of the database, we will require institutions to post to their institutional Web sites the full contracts by September 1, 2016 and the contract data by September 1, 2017. Soon after the system is created, we will require institutions to send us the URL for the contract and the contract data, and we will make this information available to the public.
Several commenters strongly supported the proposal that accounts offered under T1 or T2 arrangements not be inconsistent with the students' best financial interests. These commenters argued that it was a key mechanism to ensure that institutions place the interests of their students first; one commenter stated that this provision was the single most important regulatory change proposed in the NPRM. Some commenters supported this provision because, they argued, additional types of fees may be introduced in the future and this provision would continue to proactively provide student protections for fees or practices that are presently unknowable.
However, many of these same commenters argued that the language proposed in the NPRM represents a weakened standard relative to the drafts discussed during negotiated rulemaking because those proposals included references to nonmonetary metrics such as customer service and because the language required that the terms offered to students be equal or superior to those offered in the general market, not simply that the terms not be worse than those offered in the general market; the commenters recommended incorporating these characteristics into the final regulation. Some commenters suggested that we expand this provision to account for considerations beyond financial ones—for example, customer service and account features. Other commenters recommended that the provision should require that contracts are established with the best interests of students as the primary consideration, not simply that the contract is not inconsistent with the best interests of students. These commenters argued that absent such a change, an institution could still select a proposal if it provided the most revenue to the institution, even if another proposal offered better rates for students. Other commenters argued that T1 and T2 arrangements should be held to a higher standard than prevailing market rates.
Many commenters asserted that the proposed provisions were unnecessary, excessively vague, and did not provide objective standards against which account terms would be compared. These commenters argued that prevailing market rates varied in different parts of the country and for different institutions. Commenters also noted that the uncommon and unreasonable fees we highlighted in the NPRM were already prohibited and therefore additional protections were unworkable and unnecessary. Commenters also argued that termination on the basis of accountholder complaints was a vague standard—they questioned whether an official complaint process would be necessary or whether institutions would be permitted to discount frivolous complaints. One commenter recommended that we require a formal mechanism for collecting and reporting complaints. Another commenter recommended that we limit this provision to “valid” complaints. Commenters expressed concern that the lack of an objective standard for contract termination would allow institutions to terminate contracts for inconsequential reasons and, therefore, induce financial account providers to exit the college card market. Some of these commenters argued that the best interest provision be retained for contract formation but recommended we remove the remainder of the provision specifying how an institution would determine that students' best interests were not being met. Others strongly supported the continued inclusion of termination clauses to allow sufficient flexibility to address student complaints. One commenter noted that many institutions already include such clauses in their contracts with financial institutions.
Another frequent comment regarding vagueness concerned the requirement that “periodic” institutional due diligence reviews be conducted. Commenters pointed out that fees were unlikely to change repeatedly or frequently and that the term periodic did not give institutions sufficient guidance regarding the timeframes of such reviews. Some commenters recommended that we specify a number of years for this period, and several noted that either two or three years would be a reasonable standard.
Some commenters argued that institutions and financial account providers do not have the information or expertise necessary to determine whether the fees charged to accountholders are not excessive in light of prevailing market rates. These commenters argued that this puts a burden on institutions to evaluate a complex banking market to determine what types of fees are reasonable. One commenter argued that this provision would require schools act as de facto financial regulators.
A commenter that served on the negotiated rulemaking committee as representative of financial institutions argued that this provision would not present an excessive burden because in many cases the financial account provider would assist the institution in securing the information necessary to enable the due diligence reviews. The commenter further noted that financial account providers produce extensive fee-related (and other) information as part of requests for proposals and institutions would therefore have extensive information about the rates and fees charged in the market. The commenter also noted the financial industry's expectation that the CFPB will release a scorecard that will further support this information gathering function.
Other commenters argued that institutions are not in a position to objectively review the contracts to which they are a party. These
One commenter suggested that rather than requiring annual reporting, we require institutions demonstrate at the time the contract is established, and upon its renewal, that students are being charged reasonable fees and that the institutions disclose the payment amount they are receiving for the contract.
We agree with commenters who noted that this provision is necessary to provide protections to title IV recipients in instances where their institutions enter into arrangements with financial account providers to offer accounts to those aid recipients. As we explained in the NPRM, we believe that the many examples cited by government and consumer reports demonstrated that institutions were frequently entering into arrangements where the interests of their students were not a consideration. Instead, title IV recipients were often subject to substandard account offerings so that institutions could save on the costs of administering the title IV, HEA programs or receive large lump-sum payments in consideration for the group of new customers offered to the financial account provider. These recipients were often unable to access their title IV funds without incurring onerous or uncommon account fees, had difficulty having their funds deposited into a preexisting account, or were not fully informed of the terms of the account the institution was promoting. For institutions that have a fiduciary duty to ensure the integrity of the student aid programs, we believe this outcome is unacceptable. This provision, along with the other regulatory changes we are making, will mitigate such practices.
Equally important, however, is the point made by several commenters that this provision will provide student protections into the future. As was repeatedly noted during the negotiated rulemaking process, the financial products marketplace is a rapidly changing sector. In promulgating regulations that cover institutions choosing to enter into arrangements with financial account providers, we are aware that parts of these regulations could be rendered obsolete by virtue of these changes. For this reason rather than trying to predict future developments, we identified the most problematic practices identified by consumer groups and government entities. For future practices, which are difficult if not impossible to predict, this provision will provide assurance that institutions are still entering into and evaluating agreements with the best interests of their student accountholders.
We disagree with commenters who argued that the provision as proposed represented a weaker standard than what was proposed at the close of negotiated rulemaking because it omitted from consideration nonfinancial factors such as customer service and account features. On the contrary, we believe that this change strengthens the rule. By narrowing the scope of what is actively considered to be an objective metric, we believe it will be more difficult to circumvent these requirements using difficult to measure alternatives as justification for charging students higher account fees. However, we agree that the proposed standard of “not excessive” in light of prevailing market rates is too weak. Instead, we agree that such fees should be “consistent with or below” market rates—that is, roughly in line with rates charged in the general marketplace or below such rates.
Furthermore, we believe that the fees charged in the general market, for the most part, represent a level of revenue that can support the offering of such products while providing a product that the public is willing to purchase. While some institutions may be able to negotiate better terms for their students—and the regulations permit them to do so—we decline to force institutions to secure such terms when it may not be within their power to do so. Some institutional characteristics may drive certain financial account providers to offer below-market rates to serve a loss-leader function and secure a lucrative future customer cohort, but we believe that not all institutions will be able to accomplish such terms. By setting a minimum permissible threshold for arrangements impacting title IV recipients and taxpayer funds under the regulations, we believe we have provided protections that represent a significant improvement over current practices at many institutions, where market pressures are not brought to bear because students often believe they have no alternative method for receiving title IV funds. If we amended the regulations to go beyond such protections, we are concerned that we would simply drive good actors from the market and deprive many students of account options.
We disagree with commenters who argued that this provision must require that the best interests of students be the “primary” consideration in formalizing the arrangement. By enumerating a set of objective, measurable metrics by which the institution has to ensure that the best interests of students are being met, we believe the commenters' arguments will be addressed. Put simply, if the institution's sole consideration in entering into an arrangement is the fee revenue that will be generated by the contract, and such an arrangement results in fees that are not at or below market rates or that results in numerous student complaints, the institution will be in violation of this provision of the regulations. We believe this has the benefit of clarity for institutions and protections for title IV recipients.
We disagree with commenters that the other fee limitations for T1 arrangements render this provision redundant. Not only does the provision help protect students against similarly onerous, confusing, or usual fees that financial account providers could develop at some future point, it also protects students from being charged overly onerous and excessive fees that are not expressly prohibited under the regulations (
We also disagree with commenters who argued that the proposed standards are impracticable as a general matter. While commenters are correct to note that often prices and practices can vary from market to market, such differences are usually marginal. In contrast, the various consumer groups, government agencies, and numerous lawsuits were able to clearly delineate the types of practices and fees that were outside the mainstream of typical account providers. The regulations do not require institutions to conduct a market-by-market comparison of all the various fees that are charged. Rather, institutions are required to recognize, based on student complaints and the general practices of the market at large, whether the account provider is charging fees of a type or in an amount that is consistent with or lower than rates charged in the general market. As commenters noted, this responsibility will be aided significantly by the financial institutions through the
We also disagree with commenters that argued institutions do not have the expertise to make the best interest and market rate determinations. Institutions enter into many contracts as a part of their operations. We trust that institutions that choose to voluntarily enter into these contracts have the expertise necessary to understand and evaluate the associated costs and benefits.
We also believe that institutions with sufficient knowledge to contract with financial account providers for accounts to be offered to their title IV recipients have the ability to reasonably discern which complaints have merit and which are frivolous. The volume, nature, and severity of these complaints should inform institutions of whether renegotiation or termination of the contract is warranted under this provision. We also believe several avenues already exist to handle student complaints to their institutions and regulating a separate process would be duplicative. Again, we point to the example laid out in the preamble to the NPRM demonstrating that student complaints led to awareness at an institutional level that certain fees were excessive, and the institution was able to successfully renegotiate the contract to benefit of students. We reject the notion that an institution's contractual right to cancel a marketing arrangement for accounts that generate undue student complaints will dissuade responsible financial institutions from entering into the arrangement.
We are persuaded that the requirement to conduct “periodic” reviews would benefit from additional specificity. While we used this term in our proposed rule to provide flexibility to institutions, the comments we received convinced us that institutions would prefer a concrete timeframe. For that reason, and because we agree with commenters who argued that fees are unlikely to change on an annual basis, we are accepted in the recommendation of several commenters to specify that due diligence reviews must occur at least every two years.
We disagree with the commenter who suggested that we only require review of the contract at the time of contractual formation and upon its renewal. For contracts that are several years in length, this would not provide sufficient protection to title IV recipients in the event that fee structures change significantly or in situations where many student complaints have been received.
Finally, we do not believe that independent oversight of each contract at its formation is either necessary or practicable. We trust that institutions will comply with the new regulations and ensure that the contracts in question are made with the best financial interests of accountholders in mind. In addition, as a reminder, the contracts that are governed by this provision will be posted on institutions' Web sites and will be available publicly in a Department database. To the extent that our program reviews find that the fees being charged to students are not consistent with or are higher than market rates or that institutions are not responsive to complaints, institutions will be subject to the enforcement actions associated with regulatory noncompliance.
A number of commenters focused on the role of students in the financial aid disbursement process. Some commenters stated that students should be required to undergo more financial literacy education so they can better understand their options regarding financial accounts, and another stated that many students come to campus with little financial experience. One commenter noted that financial account providers often provide financial literacy training. One commenter noted that students often demand quick access to their title IV funds. Other commenters stated that some students may not have access to bank accounts due to minimum balance requirements, and that third-party servicers alleviate this concern. One commenter noted that because they offer their products to all students regardless of past banking behavior, they take on a higher risk than other financial institutions.
Another commenter noted that these accounts exist to provide access to banking services to students, not to attract title IV funds. One commenter stated that the creation of a disbursement selection process and the fee restrictions for in-network ATMs, opening accounts, and point-of-sale fees alone would provide enough protection for students.
One commenter stated that no student or parent should be charged a fee for the processing or delivery of title IV credit balances. Another suggested that the Department mandate a specific financial institution review process.
Finally, one commenter asked that foreign institutions be completely exempt from the proposed regulations on the grounds that many foreign institutions have a small number of Americans in their student body and that overly proscriptive regulations could limit access to programs overseas.
While we agree with the commenters who stressed the importance of financial literacy education, this topic is outside the scope of this rulemaking effort. We note that nothing in the regulations limits the ability of institutions to offer financial counseling to students.
We also believe that, as one commenter stated, because some new students have little financial experience, clear disclosures are all the more important to help them avoid
We acknowledge that third-party servicers often take on more risk because they do not prescreen their customers. However, our regulations do not ban all fees outright, but rather limit abusive practices, certain fees that can cost students access to excessive amounts of their title IV dollars, and, indirectly, certain cost shifting.
To the commenter who stated that these accounts do not exist to attract title IV funds, we disagree that these accounts can be fairly characterized as existing primarily to provide students with banking services generally, based on the proliferation of the accounts subject to these regulations among institutions having the highest percentage of credit balance recipients. Even if this were not the case, the fact is that these accounts
We thank the commenter who suggested that the Department ban fees for the processing and delivery of financial aid. However, we believe that the ban on fees for opening an account addresses this concern. We also do not believe that mandating a specific institutional review process would be helpful for institutions as they work to comply with the new regulations. Instead, we believe that institutional flexibility will be most helpful as institutions decide how to comply moving forward.
We agree that the requirements for these arrangements may be impractical for many foreign educational institutions wishing to provide timely processing of student loan funds. We recognize that both the foreign educational institutions and the students attending them often face problems that domestic institutions and their students do not—including potential visa problems. Thus, we agree that the provisions of § 668.164(e) and (f) should apply only to domestic institutions.
One commenter explained that if an institution is required to advance funds to students during the first seven days of a payment period, but then cannot later show that the students began attendance during the payment period, under § 668.21(a)(1) the institution would have to return those funds. The commenter opined that when the number of students for whom an institution must make provisions for books and supplies increases dramatically under the proposed regulation, the potential institutional liability increases accordingly.
Another commenter stated that due to the lack of explanation of this change in the preamble to the proposed regulation, many interested parties may not have noticed the proposed expansion and therefore did not submit comments. Although the commenter noted the expansion was a significant change, the commenter did not object because the commenter stated that many institutions have already expanded the current requirement to most students. In addition, the commenter requested that the Department clarify in the final regulations whether first-time students who are subject to the 30-day delayed disbursement provisions for Direct Loans would be included or excluded from this provision.
Another commenter agreed that because it is reasonable to assume that students who receive forms of need-based aid other than Pell Grant recipients have limited resources to buy books, students whose only title IV aid
One commenter stated that the institution pays credit balances to students beginning ten days before the start of a semester, thus providing students with access to funds for books and supplies purchases. In addition, the commenter stated that the proposed books and supplies provision would be limited to the on-campus bookstore for both legal and practical reasons, even though many students choose to purchase their books online or off-campus. The commenter concluded that this provision would be administratively burdensome, particularly when weighed against the limited benefit to students at that institution, and urged the Department to withdraw the proposal.
Other commenters supported the proposed expansion, noting that that while Pell Grant eligible students are likely to need assistance for purchasing books and supplies, they are not the only students who need assistance. The commenters believed the proposed provision will ensure that title IV funding is made available to students to purchase required books and supplies to prepare them for academic success.
With regard to the comment that expanding the current books and supplies provision will dramatically increase the potential liability of an institution, we note that under § 668.21(a)(1) and (2), an institution would have to return any title IV grant or loans funds that were credited to the student's ledger account or disbursed directly to the student if the student did not begin attendance during the payment period or period of enrollment. Under § 668.164(m), an institution has until the seventh day of a payment period to provide a way for a student to obtain or purchase books and supplies, and if it does so, may wait that long to document that a student began attendance to mitigate liability concerns. Or, the institution may mitigate liability concerns stemming from providing title IV funds directly to a student to purchase books and supplies, by issuing a voucher to the student redeemable at a book store or establishing another way for the student to obtain books and supplies.
With regard to students who are subject to the 30-day delayed disbursement provision under the Direct Loan Program, because an institution may not disburse those funds 10 days before the beginning of a payment period, those loan funds are not included in determining whether the student has a presumptive credit balance.
In response to the commenter whose institution generally pays credit balances 10 days before the beginning a payment period, we note that the institution satisfies the books and supplies provision for students who receive those credit balances. This institution will still need to provide a way for the remaining students to obtain or purchase books and supplies, but the burden for doing so should be minimal in view of the institution's general credit balance practice.
Another commenter objected to proposed requirement arguing that it would essentially remove an institutional authority to “carry” credit balances from one term to the next. For example, a student may receive a credit balance in his or her first payment period but owe a payment back to the institution in the second payment period when tuition is charged. The commenter stated that, as proposed, this requirement would remove the choice from students and parents who request to have their credit balances applied toward future educationally related charges instead of pocketing the overage, impacting students who potentially are the most fiscally responsible. With such a heightened focus on financial literacy and rising default rates in recent years, the
With respect to the comment that an institution placed on an alternate payment method maintain credit balance funds in an escrow account, the commenter did not specify the controls that would need to be in place to ensure that the institution immediately transferred the funds to the escrow account or how an escrow agent or trusted third party would make those funds available to students. We believe the complexity in administering, monitoring, and later auditing an escrow arrangement, and the costs associated with these activities, is not warranted for this purpose.
With regard to the comment that the prohibition on holding credit balances will remove the ability of an affected institution to carry credit balances from one term to the next, while we agree that is a consequence of this provision, we do not believe it will have the impact envisioned by the commenter because the institution will still be able to carry forward charges from one term to another term within the current year, as defined under § 668.164(c)(3)(ii)(A)—the charges carried forward may be paid by the title IV.
Finally, in the NPRM under § 668.165(b)(1)(ii) we erroneously cross referenced “§ 668.162(c)(2) or (d)(2).” These cross references should have referred to “§ 668.162(c) or (d).”
One of the commenters specifically supported the applicability of the amended regulations to undergraduates, graduates, and professional students, because this change will be a benefit to students. The commenter asked the Department to clarify in the Federal Student Aid Handbook that the amended regulation applies to these groups of students because this is a change in policy that is not reflected in the regulations.
In regard to the commenter's recommendation that we clarify the applicability of the amended regulations to undergraduates, graduates, and professional students, we plan to update the Federal Student Aid Handbook, as well as all other applicable Departmental publications and Web sites, to reflect the changes to the retaking coursework provision after the final regulations become effective.
Moreover, the regulations do not limit an institution's ability to establish policies for title IV, HEA program purposes so long as those policies are not in conflict with title IV, HEA program requirements. An institution may, for example, allow a student to challenge, or “test out of,” a course or courses. Title IV funds cannot be used to pay for any courses that a student “tests out of”; and an institution may establish its own policies for these situations, including passing the costs of the tests on to the student. However, with respect to repeating coursework previously passed by a student in a term-based program, under the final regulations, a student may use title IV, HEA funds for retaking previously passed coursework, but only one time per course. For example, the student may need to retake a course to meet an academic standard for that particular course, such as a minimum grade. Additionally, a student may use title IV, HEA funds for retaking coursework if the student is required to retake the course because the student failed the course in a prior term.
We believe the rule serves to prevent potential abuse from courses being retaken multiple times, while providing institutions sufficient flexibility to meet the needs of most students.
One commenter who supported the proposal stated that the Department should not remove the part of the current and familiar definition of a credit hour that is contained in 34 CFR 600.2, which equates one hour of classroom instruction and at least two hours of out-of-class student work per week (for 15 weeks, for example, for a semester credit).
This approach to the determination of what a credit hour consists of is somewhat different than the approach used in the definition of a credit hour in 34 CFR 600.2, and, thus, appears to result in a different number of clock hours associated with each credit hour than what would be the case if the definition of a credit hour in 34 CFR 600.2 were used. However, with respect to programs covered by § 668.8(l)(1), the formula assumes that there is some outside of class work; and with respect to programs covered by § 668.8(l)(2), the formula specifies a minimum amount of outside of class work required. When these aspects of the formulas in § 668.8(l) are considered, it is assumed that the amount of work required for a student to earn a credit hour is roughly equal in all cases. Nevertheless, as stated above, the appropriate formula in § 668.8(l) is what is used to determine the number of credit hours in a program covered by that section of the regulations in lieu of that part of the definition of a credit hour in 34 CFR 600.2 that specifies that each credit hour includes 1 hour of classroom work plus at least two hours of out of class work.
Commenters stated that certain requirements of the proposed regulations include many different components that present major obstacles for institutions and their partner financial institutions. For example, some of the key portions of the proposed regulations that commenters stated may be particularly difficult to implement by July 1, 2016 include updating disclosure materials and network systems; identifying the major features and commonly assessed fees associated with all financial accounts described in paragraphs; posting contract data to the institution's Web site; revising agreements between institutions and financial institutions; ensuring convenient access to ATMs for students; reviewing agreements to make sure that they are in the best interests of the students, as defined in the regulations; updating the physical debit and campus cards to comply with requirements; and adopting new policies and procedures to ensure that title IV funds are delivered to students in compliance with the new requirements. Another commenter noted that other agencies frequently allow a longer implementation period, and suggested 24 months as a reasonable timeframe.
Several commenters asked the Department to address how existing products and services will be affected by the regulations, and some commenters suggested that the regulations should only be applied prospectively to new T1 and T2 arrangements.
We disagree with the commenter that suggested that the regulations should apply only to T1 and T2 arrangements entered into after the effective date. T1 and T2 agreements are already a common practice at institutions, and we believe that enforcing these regulations uniformly across all institutions is the best way to protect title IV funds. Institutions will have the time required under the HEA's Master Calendar provision—until July 1, 2016—to take all necessary steps to conform their arrangements to the final regulations.
As described in the NPRM, the Department is issuing the regulations in order to address a changing marketplace as it relates to financial aid disbursement by third-party servicers. In doing so, the Department believes that these current arrangements, along with future arrangements, will be more beneficial and transparent to students and other parties.
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 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
(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 a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
This Regulatory Impact Analysis is divided into six sections. The “Need for Regulatory Action” section discusses why amending the current regulations is necessary. Reports from GAO, USPIRG, and OIG, among others, document the troubling practices that necessitated this regulatory action and affect a potentially large number of students.
The “Summary of Changes and Final Regulations” briefly describes the changes the Department is making in the regulations. The regulations amend the cash management regulations, as well as address two issues unrelated to cash management: Retaking coursework and clock-to-credit-hour conversion.
The “Discussion of Costs, Benefits, and Transfers” section considers the cost and benefit implications of the regulations for students, financial institutions, and postsecondary institutions. Specifically, the Department considered the costs and benefits of interest-bearing bank accounts, accounts offered under T1 and T2 arrangements, retaking coursework, and clock-to-credit-hour conversion.
Under “Net Budget Impacts,” the Department presents its estimate that the final regulations would not have a significant net budget impact on the Federal government.
Under “Alternatives Considered” the Department discusses other regulatory approaches we considered for key provisions of the regulations.
Finally, the “Final Regulatory Flexibility Analysis” considers the effect of the regulations on small entities.
The Department's main goal in promulgating the regulations is to address major concerns regarding the rapidly changing financial aid marketplace wherein products are offered by financial institutions under agreements with institutions to students who receive title IV, HEA credit balances.
Changes in the student financial aid marketplace make the final regulations necessary. As discussed in the NPRM, the number of institutions entering into these agreements continues to increase as these agreements help institutions save money on administrative costs that they would otherwise incur in disbursing title IV credit balances to students. These agreements have raised concerns over the practices employed by financial institutions and third-party servicers. Some of these troubling practices include an insistence on using college card accounts over preexisting accounts, implying that the only way to receive Federal student aid is through college card accounts, allowing private student information to be made available to card providers without student consent, and encouraging a proliferation of uncommon and confusing fees that are charged to aid recipients for accessing their funds. These practices, along with others discussed in the NPRM, reduce the amount of title IV aid available for educational expenses.
As detailed in the NPRM, these practices are concerning because of the number of students impacted. While data on credit card agreements and credit balances are scarce, a GAO report from July 2013 identified 852 postsecondary institutions (11 percent of all schools that participate in the title IV programs) that had college card agreements in place. While 11 percent is a small percentage of total title IV participating schools, these schools had large enrollments, making up about 39 percent of all students at schools participating in title IV programs.
The GAO report also found that college card agreements were most common at public postsecondary institutions, where 29 percent of public schools had card agreements, compared with 6.5 percent at not-for-profit schools and 3.5 percent at for-profit schools (see table [1]). Comprehensive data do not currently exist for the number of students who use accounts falling under these college card agreements. However, the GAO report found that public two-year institutions represented almost half of all schools that used college cards to make financial aid payments.
Based on the data available on the number of students affected by these college card agreements, the questionable practices of the providers, and the amount of Federal funds at stake, we believe that amending the regulations governing title IV student aid disbursement is warranted.
The final regulations are intended to ensure students have convenient access to their title IV, HEA program funds without charge, and are not led to believe they must open a particular financial account to receive their Federal student aid. As discussed in the
(1) Replacing the 30-day fee restriction with a provision requiring that students are provided at least one free mechanism to conveniently access their title IV, HEA program funds in full
(2) Establishing a threshold for the 3 most recently completed award years, that students with a title IV credit balance represent an average of five percent or more of the students enrolled at the institution; or an average of 500 students enrolled at the institution have title IV, credit balances at an institution for several of the requirements relating to T2 arrangements to apply;
(3) Exempting foreign locations from the requirement from the requirement of convenient ATM access; and
(4) Eliminating the requirement that checks be listed on the student choice menu while still allowing students to affirmatively request a refund by check and allowing institutions to list a check as an option.
We also clarify how previously passed coursework is treated for title IV eligibility purposes and streamline the requirements for converting clock hours to credit hours.
The table below briefly summarizes the major provisions of the regulations.
As discussed in the NPRM, the expected effects of the final regulations include improved information and transparency to facilitate consumer choice of financial accounts for receiving title IV credit balance funds; reasonable access to title IV funds without fees; a redistribution of some costs among students, institutions, and financial institutions; updated cash management rules to reflect current practices; streamlined rules for clock-to-credit-hour conversion; and the ability of students to receive title IV funds for repeat coursework in certain term programs. The parties that will experience the largest impacts are students, institutions, and the third-party servicers and financial institutions that have contractual relationships described as T1 and T2 arrangements in the final regulations.
In an attempt to quantify some of the costs and to reduce the burden associated with the regulations, the Department analyzed its own data to estimate the prevalence of credit balances. While there may be instances where financial institutions have an agreement with a postsecondary institution to offer college card accounts to students who do not receive credit balances, the regulations focus on accounts offered under T1 or T2 arrangements where students have a credit balance.
While comprehensive data on the number of students who receive credit balances on a college card does not currently exist, we attempted to calculate the incidence and distribution of credit balance recipients. We analyzed the data maintained by the Department to estimate the number of students who would potentially be affected by the regulations and to evaluate whether we could establish a de minimis threshold below which an institution would not be subject to the T2 requirements by analyzing the percentage of students with a credit balance at various institutions.
The numbers of students who received title IV aid in the 2013–2014 school year (from the Department's office of Federal Student Aid's National Student Loan Data System (NSLDS)) were matched by institution to data from the Integrated Postsecondary Education Data System (IPEDS) for tuition, fees, and room and board. The credit balance calculation established an institutional cost that included an estimated average tuition, fees, and room and board amount (which took into account the percentage of students who lived in-district, in-State, and out of state for tuition and fees expense, and the percentage of students who lived on-campus for room and board charges). Aid recipients were grouped by the amount of aid received (rounded into $500 ranges). For each institution, the students in the aid ranges above the estimated institutional cost were considered to have a credit balance. We used those students to obtain a percentage of students who received a credit balance at each institution. For example, if the institutional cost was determined to be $12,456 and 50 of 150 title IV aid recipients were in the buckets from $12,500 and above, approximately 33 percent of aid recipients at that institution were considered to have a credit balance.
We looked only at title IV participating institutions and aid recipients. From the data obtained, 3,400 institutions had both tuition estimates and aid recipient information. Unsurprisingly, there is an inverse relationship between an institution's tuition and fees and the percentage of students receiving a title IV credit balance. Our findings were consistent with findings from GAO and USPIRG. The data estimated a total 2,816,104 students at these 3,400 institutions were receiving a credit balance. The Department's data showed 70 percent of total students receiving a credit balance were at public two-year institutions (1,972,035 students). While all of the four-year institutions had significant estimated numbers of students who received a credit balance, the students at four-year institutions combined (819,062) still did not equal half the total number of students who received a credit balance at public two-year institutions (Table [3]). The numbers of institutions and students who received a credit balance were lowest at the less-than-two-year institutions, which represented approximately 1.8 percent of institutions and under one percent of students who received a credit balance from the 3,400 institutions with both tuition and fee and financial aid data.
As several provisions of the regulations apply to institutions with T1 or T2 arrangements, we obtained from the CFPB a listing of 914 institutions that were known to have card agreements with financial institutions and applied the same methodology described above to this subset of institutions. Of these 914 institutions with card agreements, 672 institutions had both tuition and fees and aid recipient data in the Department's dataset. A total of 1,322,615 students at the 672 institutions from this dataset were estimated to have a credit balance. The results from this subset were similar to the larger dataset. The public two-year institutions had the largest numbers of students with a credit balance with the four-year institutions also having significant numbers (See Table [4]). The less-than-two-year institutions had inconclusive data. Again, this subset provided no additional information on a clear de minimis amount.
In a final analysis of the data, we took the subset and identified only those institutions that had what would be considered a T2 arrangement under the final regulations. This narrowed down the data to 191,242 students at 160 institutions. The identified institutional data was further analyzed by sector with data available for public two-year, public four-year or above, and private not-for-profit, four-year or above institutions. The data was similar to the larger datasets (see Table [5]) and produced inconclusive results.
As discussed in the Costs, Benefits, and Transfers section of the NPRM, the provisions related to T1 arrangements would require a servicer in a T1 arrangement to provide student accountholders with convenient access to a surcharge-free regional or national ATM network. This requirement has potential cost implications for third-party servicers who currently do not meet this requirement. A few commenters contended that we had failed to quantify such costs and stated that this could have a substantial financial burden on some banks.
Some commenters suggested that the cost of installing and operating an ATM for one year could range from $20,000 to $40,000, and our market research found wide variations in cost based on the type, capacity, and condition of the ATMs. Used ATMs can be bought from wholesalers or on discount Web sites for less than $600 while many of the newer technologies cost between $4,000 and $10,000 per unit, not including the cost of installation. Furthermore, ATMs often cost upwards of $1000 a month to maintain. As some commenters noted, there are also additional costs to operating ATMs, such as providing electricity to power the machines, as well as ensuring that the machines are in secure locations.
If we assume a $25,000 cost to install and operate an ATM and apply that to the estimated 914 institutions with T1
First, as several commenters have noted, many financial institutions already have ATMs in place on campus and will not have to make any changes to comply with the reasonable access provision.
Additionally, under the final regulations, institutions will be in compliance with the reasonable access provision applies if they provide sufficient access to an ATM given the student population at a given location. In the course of developing the final regulations, we examined the available data to see if a de minimis threshold could be determined and asked for feedback about such a threshold. Many commenters agreed that a threshold should be established, but there were no suggestions on a specific number. Based on this feedback, the Department established the sufficient access standard described above. We believe this approach strikes a reasonable balance between concerns regarding the cost of providing ATM access and the interests of students who need to access their funds through this mechanism. As this approach does not specify a threshold that applies across all institutional circumstances, the Department cannot specify the exact burden the reasonable access provision will place on institutions. For example, if institutions decided a threshold of 30 students with a credit balance merited the provision of an ATM at a location, the Department estimates that, for institutions in T1 or T2 arrangements, over 70 percent of locations representing over 95 percent of students with credit balances would be over that number when using an eight-digit NSLDS school code as a proxy for location and the estimates of students with credit balances as described in the Data and Methodology section of this RIA. The revised provision relies on institutional knowledge of enrollment and location in determining the number of additional ATMS needed to satisfy the standard of convenient access, and, along with the preexisting access, will likely reduce the $22.9 million in initial costs and $11.0 million in annual costs estimated above.
The direct marketing methods employed by financial institutions, third-party servicers, and postsecondary institutions have proven to be fairly effective. As mentioned earlier in the Need for Regulatory Action of this RIA, 10 million students (Chart 1) are at title IV-participating schools where card agreements are prevalent. As described in the NPRM, data limitations and uncertainty about the student reaction to the information and options that will be part of the student choice menu under the final regulations present challenges in estimating the costs of the T2 arrangements. If students move away from products offered under T2 arrangements, providers may incur additional marketing expense or other costs to administer the accounts.
Based on this feedback, the Department decided that institutions must meet a certain threshold to be subject to certain requirements relating to T2 arrangements including disclosure of the contract data, the ATM requirements, and the best interests sections. Institutions are subject to those requirements if five percent or more of the total number of students enrolled at the institution received at title IV credit balance, or the average number of credit balance recipients for the three most recently completed award years is 500 or more. For institutions that do not have significant percentage or numbers of students with a credit balance, the threshold for classification as a T2 arrangement will potentially provide some mitigation of the costs associated with T2 arrangements.
Additional discussion of the costs of implementing and complying with these final regulations can be found in the
Institutions with T1 arrangements are required to mitigate fees that could be incurred by student aid recipients by prohibiting point-of-sale fees and overdraft fees charged to students. Additionally, these institutions must ensure that students have convenient access through surcharge-free ATMs that are part of a national or regional ATM network. Little information is currently available on the total amount of college card fees paid by students. Most financial account providers are unwilling or unable to provide information on fees to the Department. The GAO report reviewed fee schedules from eight financial institutions and found that while college cards do not have monthly maintenance fees, fees for out-of-network ATM use, wire transfers, and overdraft fees were similar to the financial products marketed to non-students. Credit unions' fees were typically lower than those charged by college cards (see Table [6]). However, college card fees were lower than alternative financial products, such as check-cashing services.
While we do not know the total amount of college card fees paid by students annually, we do know the amounts are substantial. A review of the annual SEC filings by one market participant, Higher One, indicates that account revenue from a variety of fees totaled $135.8 million in FY 2013, which represented 64.3 percent of total
Along with being unable to determine the total amount of college card fees paid by students, student behavior is also unpredictable, and student response to the information about account options and costs will significantly contribute to the effect of the regulations. While it is assumed that consumers with appropriate information would make rational decisions, such as avoiding withdrawals from out-of-network ATMs or choosing debit transactions that require signatures rather than a PIN, some students may not make the optimal choices in managing their accounts. The Department does not have the distribution of students in accounts with specific fee arrangements, data on student usage patterns, or data on the responsiveness of students to the information that will be provided under the regulations, and therefore it is difficult for us to estimate the exact transfers that will occur when certain fees on student accounts are prohibited. Some analysis has been done on account usage that can be used to establish a range of possible effects of the regulations. In its August 2014 report, Consumers Union developed minimal, moderate, and heavy usage profiles and determined that the accounts it analyzed would cost minimal users from $0 to $59.40, moderate users from $10.20 to $95.00, and heavy users from $59.40 to $520.00 on an annual basis.
An additional analysis by U.S. PIRG included data on overdraft behavior by age range, with adults in the 18 to 25 age range having the highest incidence of paying overdraft fees—53.6 percent paying zero, 21.5 percent paying $1 to $4, 10.3 percent paying $5 to $9, 7.9 percent paying $10 to $19, and 6.8 percent paying $20 or more for each overdrafts.
Another element that complicates the analysis of the effects of the regulations is the response of financial institutions and institutions. The fee provisions imposed on accounts offered pursuant to T1 arrangements will have cost implications for affected servicers. One intent of the regulations is to allow students to access financial aid funds without burden from fees or other costs; however, the Department acknowledges that many of these servicers could restructure their accounts to earn some of those funds through fees not affected by the regulations. Over time, as contracts are renewed or entered into, financial institutions could also increase the revenue they receive from institutions, but the split between the revenue that can be recaptured and that which might be lost to financial institutions is not estimated in this analysis.
As noted in the Summary of Changes and Final Regulations, institutions with T1 and T2 arrangements are subject to several provisions focused on increasing disclosure of information related to student accounts and emphasizing the availability of options for students to receive credit balances. Students have a variety of choices on how to receive their aid. Based on data from the National Postsecondary Student Aid Study (NPSAS) conducted by the National Center for Education Statistics (NCES), we know that a majority of students receive a refund by depositing a refund directly to a bank account (37.2 percent) or by cashing or depositing a refund at a bank themselves (38.5 percent). The remaining 24.3 percent of students receive refunds by cashing refunds somewhere other than a bank, receive refunds on a prepaid debit card, receive a refund through student ID cards, or do something else not listed.
One of the largest benefits for students from the regulations is that students will have access to account disclosures and critical information to allow them to make informed decisions regarding the handling and distribution of their title IV funds. The fee and contract disclosures will help students and regulators determine whether the financial products marketed by financial institutions with relationships to their school are the best option for them. These disclosures will also help prevent students from being misled into believing that they must use those financial products.
With respect to including the costs of books and supplies in tuition and fees, the Department has changed the “best financial interest” standard in the NPRM to allowing the inclusion under three circumstances. As described in the
The regulations also help protect students from deceptive marketing practices aimed at encouraging them to do business with a particular financial institution. When students are not presented with clear choices or
As discussed in the NPRM, the regulations provide other benefits for students and institutions. Institutions will benefit from being able to keep the first $500 in interest accrued on accounts holding title IV funds. Institutions and students will benefit from the retaking coursework regulations as students will be able to continue paying for educational costs with title IV aid. The clock-to-credit-hour conversion regulations also will benefit institutions through simplification of regulations affecting institutional determinations relating to title IV eligibility.
The final regulations are not estimated to have a significant net budget impact. Consistent with the requirements of the Credit Reform Act of 1990, budget cost estimates for the student loan programs reflect the estimated net present value of all future non-administrative Federal costs associated with a cohort of loans. A cohort reflects all loans originated in a given fiscal year.
The regulations require disclosures of institutional agreements with financial services providers through which students may opt to receive title IV credit balances, and restrict the fees students can be charged for accounts offered pursuant to T1 arrangements. Additionally, the proposed regulations make technical changes to subpart K cash management rules to reflect technological advances and improved disbursement practices. The regulations also simplify the clock-to-credit-hour conversion for title IV purposes by eliminating the reference to any State requirement or role in approving or licensing a program. Finally, the regulations eliminate the provision that prevents institutions from counting previously passed courses towards enrollment where the repetition is due to the student failing other coursework.
The regulations affect the arrangements among institutions, students, and financial service providers, but are not expected to affect the volume of title IV aid disbursed or the repayment patterns of students, and therefore, we estimate no significant budget impact on title IV programs.
As required by OMB Circular A–4 (available at
The final regulations will affect institutions that participate in the title IV, HEA programs, financial institutions, and individual borrowers. The U.S. Small Business Administration (SBA) Size Standards define for-profit institutions as “small businesses” if they are independently owned and operated and not dominant in their field of operation with total annual revenue below $7,000,000. The SBA Size Standards define not-for-profit institutions as “small organizations” if they are independently owned and operated and not dominant in their field of operation, or as “small entities” if they are institutions controlled by governmental entities with populations below 50,000. The revenues involved in the sector that would be affected by the regulations, and the concentration of ownership of institutions by private owners or public systems, means that the number of title IV, HEA eligible institutions that are small entities would be limited but for the fact that the not-for-profit entities fit within the definition of a “small organization” regardless of revenue. Given the definitions above, several of the entities subject to the regulations are small, leading to the preparation of the following Final Regulatory Flexibility Act Analysis.
Over the past several years, a number of changes have occurred in the student financial products marketplace and in budgets of postsecondary institutions that have led to a proliferation of agreements between postsecondary institutions and “college card” providers. These cards, usually in the form of debit or prepaid cards and sometimes cobranded with the institution's logo or combined with student IDs, are marketed to students as a way to receive their title IV credit balances via more convenient electronic means. However, a number of government and consumer group reports have also documented troubling practices employed by some of the providers of these college cards. Legal actions against the sector's largest provider further substantiate these reports' findings.
The Secretary is amending the cash management regulations under subpart K issued under the HEA to address a number of disturbing practices
Given the number of students affected by these agreements, the amount of taxpayer-funded title IV aid at stake, and the concerning practices and expanding breadth of the college card market, we believe regulatory action governing the manner in which title IV, student aid is disbursed is warranted.
In addition, it has been 20 years since subpart K was comprehensively updated, and in that time a number of technological improvements and changes in authorized title IV programs have occurred. We have therefore made a number of more minor changes throughout subpart K in the final regulations.
These final regulations would affect institutions, financial services providers that enter into certain arrangements with institutions, and students. Students are not considered “small entities” for the purpose of this analysis and the Department does not expect the financial institutions to meet the applicable definition of a “small entity.” However, a significant number of institutions of higher education are considered to meet the applicable definition of a “small entity,” and therefore, this analysis focuses on those institutions. As discussed above, private not-for-profit institutions that do not dominate in their field are defined as “small entities” and some other institutions that participate in title IV, HEA programs do not have revenues above $7 million and are also categorized as “small entities.” Table [8] summarizes the distribution of small entities affected by the regulations by sector.
The various provisions in the regulations require disclosures by institutions as discussed in the
The final regulations are unlikely to conflict with or duplicate existing Federal regulations. We consulted Federal banking regulators at FDIC, OCC and the Bureau of the Fiscal Service at the Treasury Department, and the CFPB, for help in understanding Federal banking regulations and the Federal bank regulatory framework. We have crafted these regulations in a way that will complement, rather than conflict with, existing banking regulations. The most significant risk of potential conflict is with respect to account disclosure requirements, described in more detail in the “
As described above, the Department participated in negotiated rulemaking when developing the proposed regulations, and considered a number of options for some of the provisions. No alternatives were aimed specifically at small entities, although the threshold of 500 students with a credit balance for classification as a T2 arrangement and the sufficient access standard for ATMs at campus locations may have a greater effect on small entities.
In the NPRM we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review and further consideration of the regulations, we have determined that the final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507(d)) does not require a response to a collection of information unless it displays a valid OMB control number. We display the valid OMB control number assigned to this collection of information in the final regulations at the end of the affected sections of the regulations.
Section 668.164 contains information collection requirements. Under the PRA, the Department has submitted a copy of this section, related forms, and the Information Collections Request (ICR) to the Office of Management and Budget (OMB) for its review.
The OMB Control number associated with the final regulation is 1845–0106.
Under § 668.164(d)(4)(i), an institution in a State that makes direct payments to a student by EFT and that chooses to enter into an arrangement described in § 668.164(e) or (f), including an institution that uses a third-party servicer to make those payments, must establish a selection process under which the student chooses one of several options for receiving those payments. The institution must inform the student in writing that he or she is not required to open or obtain a financial account or access device offered by or through a specific financial institution. The institution must ensure that the student's options for receiving direct payments are described and presented in a clear, fact-based, and neutral manner, and with no option preselected, except that the institution must prominently present as the first option, the financial account or access device associated with an existing account belonging to the student.
The institution must ensure that initiating the EFT to a financial account or access device associated with an existing student financial account is as timely and no more onerous to the student as initiating the electronic transfer process to an account offered under a T1 or T2 arrangement. The institution must allow the student to change his or her choice as to how direct payments are made, as long as the student provides the institution with written notice of the change within a reasonable amount of time. The institution must ensure that a student who does not make an affirmative selection of how direct payments are to be made is paid the full amount of the credit balance due consistent with the regulations. In describing the options, the institution must list and identify the major features and commonly assessed fees associated with all accounts offered under a T1 or T2 arrangement, as well as a URL for the terms and conditions of those accounts. For each account, if an institution by July 1, 2017 follows the format and content requirements specified by the Secretary in a notice published in the
Alternatively, an institution that does not offer accounts under a T1 or T2 arrangement is not required to establish a student choice process and, instead, may make direct payments to an existing account designated by the student, issue a check, or disburse cash to the student.
We looked only at title IV participating institutions and aid recipients. From the data obtained, 3,400 institutions (out of the total 7,539 participating in title IV, HEA programs) had both tuition estimates and aid recipient information. Unsurprisingly, there was an inverse relationship between an institution's tuition and fees and the percentage of students receiving a title IV credit balance. The Department's findings were consistent with findings from GAO and USPIRG. In an effort to thoroughly analyze all of the available data, we also applied the same methodology described above to a
Of the 914 institutions with card agreements, the NSLDS–IPEDS–CFPB data show that 685 institutions are public institutions. On average, we estimate the burden associated with developing and implementing the student choice options will increase by 20 hours per institution and therefore we estimate a total burden of 13,700 hours (685 institutions times 20 hours per institution) under OMB Control Number 1845–0106.
Of the 914 institutions with card agreements, the NSLDS–IPEDS–CFPB data show that 154 institutions are private not-for-profit institutions. On average, we estimate the burden associated with developing and implementing the student choice options will increase by 20 hours per institution and therefore we estimate a total burden of 3,080 hours (154 institutions times 20 hours per institution) under OMB Control Number 1845–0106.
Of the 914 institutions with card agreements, the NSLDS–IPEDS–CFPB data show that 75 are private for-profit institutions. On average, we estimate the burden associated with developing and implementing the student choice options will increase by 20 hours per institution and therefore we estimate a total burden of 1,500 hours (75 institutions times 20 hours per institution) under OMB Control Number 1845–0106.
Overall, burden to institutions will increase by 18,280 hours (the sum of 13,700 hours, 3,080 hours, and 1,500 hours).
The NSLDS–IPEDS–CFPB data indicate that 1,798,756 title IV recipients with credit balances for the 2013–14 award year will be impacted by this regulation. We estimate that each of the affected title IV recipients will take, on average, 20 minutes (.33 hours) to review the options presented by the institution or their third-party servicer and to make their selection.
Of the total number of title IV recipients with a credit balance, the data show that 1,736,141 recipients were enrolled in public institutions. On average, each recipient will take 20 minutes (.33 hours) to read the materials and make their selection, increasing burden by 572,927 hours (1,736,141 times .33 hours) under OMB Control Number 1845–0106.
Of the total number of title IV recipients with a credit balance, the data show that 13,601 recipients were enrolled in private not-for-profit institutions. On average each recipient will take 20 minutes (.33 hours) to read the materials and make their selection, increasing burden by 4,488 hours (13,601 recipients times .33 hours) under OMB Control Number 1845–0106.
Of the total number of title IV recipients with a credit balance, the data show that 49,014 recipients were enrolled in private for-profit institutions. On average each recipient will take 20 minutes (.33 hours) to read the materials and make their selection, increasing burden by 16,175 hours (49,014 recipients times .33 hours) under OMB Control Number 1845–0106.
Overall, burden to title IV recipients will increase by 593,590 hours (the sum of 572,927 hours, 4,488 hours, and 16,175 hours).
Under § 668.164(e), a T1 arrangement exists when an institution in a State enters into a contract with a third-party servicer under which the servicer performs one or more of the functions associated with processing direct payments of title IV, HEA program funds on behalf of the institution, and the institution or third party servicer makes payments to one or more financial accounts that are offered to students under the contract, or to a financial account where information about the account is communicated directly to students by the third-party servicer or by the institution on behalf of or in conjunction with the third party servicer.
An institution with a T1 arrangement must comply with the following requirements:
1. The institution must ensure that the student's consent to open the financial account has been obtained before an access device, or any representation of an access device is sent to the student, or an access device that is provided to the student for institutional purposes, such as a student ID card, is validated, enabling the student to use the device to access a financial account. Before a student makes a selection of the financial account, the institution must not share with the third-party servicer under a T1 arrangement any information about the student, other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37, beyond a unique student identifier generated by the institution that does not include a Social Security number, in whole or in part; the disbursement amount; a password, PIN code, or other shared secret provided by the institution that is used to identify the student; or any additional items specified by the Secretary in a notice published in the
2. The institution must inform the student of the terms and conditions of the financial account, in a manner consistent with disclosure requirements specified by the Secretary in a notice published in the
3. The institution must ensure that the student has convenient access to the financial account through a surcharge-free national or regional ATM network. Those ATMs must be sufficient in number and housed and serviced such that the funds are reasonably available to the accountholder, including at the times the institution or its third-party servicer makes direct payments into them. The institution must also ensure that students do not incur any cost: for opening the financial account or initially receiving an access device; assessed by the institution, third-party servicer, or associated financial institution on behalf of the third-party servicer, when the student conducts point-of-sale transactions in a State; or for conducting any transaction on an ATM that belongs to the surcharge-free regional or national network.
4. The institution must ensure that: The financial account or access device is not marketed or portrayed as, or converted into a credit card; no credit may be extended or associated with the financial account; and no fee is charged to the student for any transaction or withdrawal exceeding the balance on the card, except that a transaction that exceeds the balance on the card may be permitted only for inadvertently approved overdrafts as long as no fee is charged to the student for such overdraft.
5. The institution, third-party servicer, or third-party servicer's associated financial institution must provide domestic withdrawals for a student accountholder to conveniently access title IV, HEA program funds in
6. No later than September 1, 2016, the institution must disclose conspicuously on its Web site, and thereafter timely update, the contract between the institution and financial institution in its entirety, except for any portions that, if disclosed, would compromise personal privacy, proprietary information technology, or the security of information technology or of physical facilities. No later than September 1, 2017, and then 60 days following the most recently completed award year thereafter, disclose conspicuously on its Web site in a format to be published by the Department: The total consideration, monetary and non-monetary, paid or received by the parties under the terms of the contract; the number of students who had active financial accounts under the contract at any time during the most recently completed award year; and the mean and median of the actual costs incurred by those active account holders. The institution must also annually provide to the Secretary a URL link to the agreement and the foregoing contract data for publication in a centralized database accessible to the public.
7. The institution must ensure that the terms of the accounts offered under a T1 arrangement are not inconsistent with the best financial interests of the students opening them. The Secretary considers this requirement to be met if the institution documents that it conducts reasonable due diligence reviews at least every two years, to ascertain whether the fees imposed under the T1 arrangement are, considered as a whole, consistent with or lower than prevailing market rates; and all contracts for the marketing or offering of accounts under a T1 arrangement to the institution's students provide for termination of the arrangement at the discretion of the institution based on complaints received from students or a determination by the institution that the fees assessed under the account are not consistent with or are above prevailing market rates.
8. The institution must take affirmative steps, by way of contractual arrangements with the third-party servicer as necessary, to ensure that these requirements are met with respect to all accounts offered pursuant to T1 arrangements.
9. The requirements of paragraph (e)(2) do not apply to a student no longer enrolled if there are no pending title IV disbursements pending for that students, except that the institution remains responsible for including in the disclosures required of it any data regarding a T1 account maintained by a student during the preceding award year and the fees the student incurred, regardless of whether the student is no longer enrolled at the time institution discloses the data.
Based upon our examination of the 2013–14 NSLDS and IPEDS data that was further refined by examining the CFPB listing of 914 institutions known to have arrangements that constitute T1 or T2 arrangements under the regulations, we determined that there are 541 public institutions with a T1 arrangement. We estimate that the changes necessitated by the requirements relating to T1 arrangements will add an additional 55 hours of burden per institution, increasing burden by 29,755 hours (541 institutions times 55 hours per institution) under OMB Control Number 1845–0106.
Based upon our examination of the 2013–14 NSLDS and IPEDS data that was further refined by examining the CFPB listing of 914 institutions known to have arrangements that constitute T1 or T2 arrangements under the regulations, we determined that there are 80 private not-for-profit institutions with a T1 arrangement. We estimate that the changes necessitated by the requirements relating to T1 arrangements will add an additional 55 hours of burden per institution, increasing burden by 4,400 hours (80 institutions times 55 hours per institution) under OMB Control Number 1845–0106.
Based upon our examination of the 2013–14 NSLDS and IPEDS data that was further refined by examining the CFPB listing of 914 institutions known to have arrangements that constitute T1 or T2 arrangements under the regulations, we determined that there are 75 private for-profit institutions with a T1 arrangement. We estimate that the changes necessitated by the requirements relating to T1 arrangements will add an additional 55 hours of burden per institution, increasing burden by 4,125 hours (75 institutions times 55 hours per institution) under OMB Control Number 1845–0106.
Overall, burden to title IV institutions will increase by 38,280 hours (the sum of 29,755 hours, 4,400 hours, and 4,125 hours).
The NSLDS–IPEDS–CFPB data showed that there were 1,538,667 title IV recipients with credit balances at institutions with a T1 arrangement in the 2013–14 award year. Of that number of recipients, the data showed that 1,476,144 were enrolled at public institutions. We estimate that, on average, each recipient will take 15 minutes (.25 hours) to read about the major features and fees associated with the financial account, information about the monetary and non-monetary remuneration received by the institution for entering into the T1 arrangement, the number of students who had financial accounts under the T1 arrangement for the most recently completed year, the mean and median costs incurred by account holders, and determine whether to provide their consent to the institution. Therefore, the additional burden on title IV recipients will increase by 369,036 hours (1,476,144 times .25 hours) under OMB Control Number 1845–0106.
The data showed that 13,509 title IV recipients with credit balances were enrolled at private not-for-profit institutions. We estimate that, on average, each recipient will take 15 minutes (.25 hours) to read about the major features and fees associated with the financial account, information about the monetary and non-monetary remuneration received by the institution for entering into the T1 arrangement, the number of students who had financial accounts under the T1 arrangement for the most recently completed year, the mean and median costs incurred by account holders, and determine whether to provide their consent to the institution. Therefore, the additional burden on title IV recipients will increase by 3,377 hours (13,509 times .25 hours) under OMB Control Number 1845–0106.
The data showed that 49,014 title IV recipients with credit balances were enrolled at private for-profit institutions. We estimate that, on average, each recipient will take 15
Overall, burden to recipients will increase by 384,667 hours (the sum of 369,036 hours, 3,377 hours, and 12,254 hours).
Under § 668.164(f), a T2 arrangement exists when an institution enters into a contract with a financial institution, or entity that offers financial accounts through a financial institution, under which financial accounts are offered and marketed directly to students. However, the institution does not have to comply with paragraphs(d)(1)(4) or (f)(4) and (5) if it had no credit balance recipients in one or more of the preceding three award years, nor with certain requirements in § 668.164(f)(4) if it documents that, on average over the preceding three years, fewer than 500 students received a credit balance and credit balance recipients comprised less than five percent of enrollment. The Secretary considers that a financial account is marketed directly if the institution communicates information directly to its students about the financial account and how it may be opened; the financial account or access device is cobranded with the institution's name, logo, mascot, or other affiliation and marketed principally to students; or an access device that is provided to the student for institutional purposes, such as a student ID card, is validated, enabling the student to use the device to access a financial account.
Under a T2 arrangement, the institution must comply with the following requirements:
1. The institution must ensure that the student's consent to open the financial account is obtained before: The institution provides, or permits a third-party servicer to provide, any personally identifiable about the student to the financial institution or its agents other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37; or an access device, or any representation of an access device, is sent to the student (except that an institution may send the student an access device that is a card provided to the student for institutional purposes, such as a student ID card, so long as the institution or financial institution obtains the student's consent before validating the device to enable the student to access the financial account).
2. The institution must inform the student of the terms and conditions of the financial account, in a manner consistent with the disclosure requirements specified by the Secretary in a notice published in the
3. No later than September 1, 2016, the institution must disclose conspicuously on the institution's Web site, the contract between the institution and financial institution in its entirety, except for any portions that, if disclosed, will compromise personal privacy, proprietary information technology, or the security of information technology or of physical facilities, and must also provide to the Secretary the URL for the contract for publication in a centralized database accessible to the public, and must thereafter update the contract posted with any changes. No later than September 1, 2017, and thereafter no later than 60 days following the most recently completed award year thereafter, the institution must disclose conspicuously on its Web site in a format to be published by the Department the total consideration, monetary and non-monetary, paid or received by the parties under the terms of the contract; and, for any year in which the institution's enrolled students had open 30 or more financial accounts marketed under the T2 arrangement, the number of students who had financial accounts under the contract at any time during the most recently completed award year; and the mean and median of the actual costs incurred by those active account holders. The institution must ensure that the foregoing data is included on the URL provided to the Secretary disclosing the contract.
4. If the institution is located in a State, it must ensure that the student accountholder can execute balance inquiries and access funds deposited in the financial accounts through surcharge-free in-network ATMs sufficient in number and housed and serviced such that the funds are reasonably available to the accountholder, including at the times the institution or its third-party servicer makes direct payments into them.
5. The institution must ensure that the financial accounts are not marketed or portrayed as, or converted into, credit cards.
6. The institution must ensure that the terms of the accounts offered under a T2 arrangement are not inconsistent with the best financial interests of the students opening them. The Secretary considers this requirement to be met if the institution documents that it conducts reasonable due diligence reviews at least every two years, to ascertain whether the fees imposed under the accounts are, considered as a whole, consistent with or lower than prevailing market rates; and all contracts for the marketing or offering of the accounts to the institution's students provide for termination of the arrangement at the discretion of the institution based on complaints received from students or a determination by the institution that the fees assessed under the account are not consistent with or are above prevailing market rates.
7. The institution must take affirmative steps, by way of contractual arrangements with the financial institution as necessary, to ensure that these requirements are met with respect to all accounts offered under a T2 arrangement.
8. The institution must ensure that students incur no cost for opening the account or initially receiving or validating an access device.
9. If the institution enters into an agreement for the cobranding of a financial account but maintains that the account is not marketed principally to its enrolled students and is not otherwise marketed directly, the institution must retain the cobranding contract and other documentation it believes establishes this.
10. The requirements of paragraph (f)(4) do not apply to a student no longer enrolled if there are no pending title IV disbursements pending for that students, except that the institution remains responsible for including in the disclosures required of it any data regarding a T2 account maintained by a student during the preceding award year and the fees the student incurred, regardless of whether the student is no longer enrolled at the time institution discloses the data.
Based upon our examination of the 2013–14 NSLDS and IPEDS data on title IV recipients there were 7,539 institutions of higher education participating in title IV, HEA programs.
Of these 7,539 institutions, according to NSLDS–IPEDS–CFPB data, 144 are public institutions with T2 arrangements. We estimate that the changes necessitated by the requirements relating to T2 arrangements will add an additional 45 hours of burden per institution, increasing burden by 6,480 hours under OMB Control Number 1845–0106.
Of the 7,539 institutions, according to NSLDS–IPEDS–CFPB data, 74 are private not-for-profit institutions with T2 arrangements. We estimate that the changes necessitated by the requirements relating to T2 arrangements will add an additional 45 hours of burden per institution, increasing burden by 3,330 hours under OMB Control Number 1845–0106.
Of the 7,539 institutions, according to NSLDS–IPEDS–CFPB data, no private for-profit institutions where title IV recipients had credit balances have T2 arrangements.
Overall, burden to institutions will increase by 9,810 hours (the sum of 6,480 hours and 3,330 hours).
From the NSLDS–IPEDS–CFPB data, we projected that there were 260,089 title IV recipients with credit balances at institutions with T2 arrangements. Of those recipients, the data showed that 259,997 were enrolled at public institutions. We estimate that, on average, each recipient will take 15 minutes (.25 hours) to read the institution's required disclosures and consent information and decide whether to provide consent or not. Therefore, the additional burden on title IV recipients will increase by 64,999 hours under OMB Control Number 1845–0106.
Of the total 260,089 title IV recipients with credit balances at institutions that had a T2 arrangement, we estimated that 92 were enrolled at private not-for-profit institutions. We estimate that, on average, each recipient will take 15 minutes (.25 hours) to read the institution's required disclosures and consent information and decide whether to provide consent or not. Therefore, the additional burden on title IV recipients will increase by 23 hours under OMB Control Number 1845–0106.
Of the total 260,089 title IV recipients with credit balances at institutions with T2 arrangements, the data showed that zero were enrolled at private for-profit institutions.
Overall, burden to title IV recipients will increase by 65,022 hours (the sum of 64,999 hours and 23 hours).
Collectively, the total increase in burden for § 668.164 will be 1,109,649 hours under OMB Control Number 1845–0106.
Consistent with the discussion above, the following chart describes the sections of the final regulations involving information collections, the information being collected, and the collections that the Department has submitted to OMB for approval, and the estimated costs associated with the information collections. The monetized net costs of the increased burden on institutions and borrowers, using wage data developed using BLS data, available at
The total burden hours and change in burden hours associated with each OMB Control number affected by these regulations follows:
You may also access documents of the Department published in the
Colleges and universities, Consumer protection, Grant programs—education, Loan programs—education, Reporting and recordkeeping requirements, Student aid.
For the reasons discussed in the preamble, the Secretary of Education amends part 668 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1001–1003, 1070a, 1070g, 1085, 1087b, 1087d, 1087e, 1088, 1091, 1092, 1094, 1099c, 1099c–1, 1221e–3, and 3474, unless otherwise noted.
(b) * * *
(1) For a program that measures progress in credit hours and uses standard terms (semesters, trimesters, or quarters), 12 semester hours or 12 quarter hours per academic term.
(2) For a program that measures progress in credit hours and does not use terms, 24 semester hours or 36 quarter hours over the weeks of instructional time in the academic year, or the prorated equivalent if the program is less than one academic year.
(3) For a program that measures progress in credit hours and uses nonstandard terms (terms other than semesters, trimesters, or quarters) the number of credits determined by—
(i) Dividing the number of weeks of instructional time in the term by the number of weeks of instructional time in the program's academic year; and
(ii) Multiplying the fraction determined under paragraph (3)(i) of this definition by the number of credit hours in the program's academic year.
(4) For a program that measures progress in clock hours, 24 clock hours per week.
(5) A series of courses or seminars that equals 12 semester hours or 12 quarter hours in a maximum of 18 weeks.
(6) The work portion of a cooperative education program in which the amount of work performed is equivalent to the academic workload of a full-time student.
(7) For correspondence coursework, a full-time course load must be—
(i) Commensurate with the full-time definitions listed in paragraphs (1) through (6) of this definition; and
(ii) At least one-half of the coursework must be made up of non-correspondence coursework that meets one-half of the institution's requirement for full-time students.
(k)
(1) The program is at least two academic years in length and provides an associate degree, a bachelor's degree, a professional degree, or an equivalent degree as determined by the Secretary; or
(2) Each course within the program is acceptable for full credit toward that institution's associate degree, bachelor's degree, professional degree, or equivalent degree as determined by the Secretary provided that—
(i) The institution's degree requires at least two academic years of study; and
(ii) The institution demonstrates that students enroll in, and graduate from, the degree program.
(l)
(i) A semester hour must include at least 37.5 clock hours of instruction;
(ii) A trimester hour must include at least 37.5 clock hours of instruction; and
(iii) A quarter hour must include at least 25 clock hours of instruction.
(2) The institution's conversions to establish a minimum number of clock hours of instruction per credit may be less than those specified in paragraph (l)(1) of this section if the institution's designated accrediting agency, or recognized State agency for the approval of public postsecondary vocational institutions for participation in the title IV, HEA programs, has not identified any deficiencies with the institution's policies and procedures, or their implementation, for determining the credit hours that the institution awards for programs and courses, in accordance with 34 CFR 602.24(f) or, if applicable, 34 CFR 603.24(c), so long as—
(i) The institution's student work outside of class combined with the clock hours of instruction meet or exceed the numeric requirements in paragraph (l)(1) of this section; and
(ii)(A) A semester hour must include at least 30 clock hours of instruction;
(B) A trimester hour must include at least 30 clock hours of instruction; and
(C) A quarter hour must include at least 20 hours of instruction.
(a)
(2) As used in this subpart—
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(b)
(c)
(a)
(b)
(2) If the Secretary accepts that request, the Secretary initiates an EFT of that amount to the depository account designated by the institution.
(3) The institution must disburse the funds requested as soon as administratively feasible but no later than three business days following the date the institution received those funds.
(c)
(2) An institution seeks reimbursement by submitting to the Secretary a request for funds that does not exceed the amount of the disbursements the institution has made to students or parents included in that request.
(3) As part of its reimbursement request, the institution must—
(i) Identify the students or parents for whom reimbursement is sought; and
(ii) Submit to the Secretary, or an entity approved by the Secretary, documentation that shows that each student or parent included in the request was—
(A) Eligible to receive and has received the title IV, HEA program funds for which reimbursement is sought; and
(B) Paid directly any credit balance due under § 668.164(h).
(4) The Secretary will not approve the amount of the institution's reimbursement request for a student or parent and will not initiate an EFT of that amount to the depository account designated by the institution, if the Secretary determines with regard to that student or parent, and in the judgment of the Secretary, that the institution has not—
(i) Accurately determined the student's or parent's eligibility for title IV, HEA program funds;
(ii) Accurately determined the amount of title IV, HEA program funds disbursed, including the amount paid directly to the student or parent; and
(iii) Submitted the documentation required under paragraph (c)(3) of this section.
(d)
(1) Submits a request for funds under the provisions of the advance payment method described in paragraphs (b)(1) and (2) of this section, except that the institution's request may not exceed the amount of the disbursements the institution has made to the students included in that request; or
(2) Seeks reimbursement for those disbursements under the provisions of the reimbursement payment method described in paragraph (c) of this section, except that the Secretary may modify the documentation requirements and review procedures used to approve the reimbursement request.
(a)(1)
(2) For each depository account that includes title IV, HEA program funds, an institution located in a State must clearly identify that title IV, HEA program funds are maintained in that account by—
(i) Including in the name of each depository account the phrase “Federal Funds”; or
(ii)(A) Notifying the depository institution that the depository account contains title IV, HEA program funds that are held in trust and retaining a record of that notice; and
(B) Except for a public institution located in a State or a foreign institution, filing with the appropriate State or municipal government entity a UCC–1 statement disclosing that the depository account contains Federal funds and maintaining a copy of that statement.
(b)
(1) The requirements in this subpart;
(2) The recordkeeping and reporting requirements in subpart B of this part; or
(3) Applicable program regulations.
(c)
(2) Any interest earned on Federal Perkins Loan program funds is retained by the institution as provided under 34 CFR 674.8(a).
(3) An institution may keep the initial $500 in interest it earns during the award year on other title IV, HEA program funds it maintains in accordance with paragraph (c)(1) of this section. No later than 30 days after the end of that award year, the institution must remit to the Department of Health and Human Services, Payment Management System, Rockville, MD 20852, any interest over $500.
(d)
(1) Maintain accounting and internal control systems that identify the cash balance of the funds of each title IV, HEA program that are included in the institution's depository account or accounts as readily as if those funds were maintained in a separate depository account;
(2) Identify the earnings on title IV, HEA program funds maintained in the institution's depository account or accounts; and
(3) Maintain its fiscal records in accordance with the provisions in § 668.24.
(a)
(i) Funds received from the Secretary; or
(ii) Institutional funds used in advance of receiving title IV, HEA program funds.
(2)(i) For a Direct Loan for which the student is subject to the delayed disbursement requirements under 34 CFR 685.303(b)(5), if an institution credits a student's ledger account with institutional funds earlier than 30 days after the beginning of a payment period, the Secretary considers that the institution makes that disbursement on the 30th day after the beginning of the payment period; or
(ii) If an institution credits a student's ledger account with institutional funds earlier than 10 days before the first day of classes of a payment period, the Secretary considers that the institution makes that disbursement on the 10th day before the first day of classes of a payment period.
(b)
(2) An institution may make a prior year, late, or retroactive disbursement, as provided under paragraph (c)(3), (j), or (k) of this section, respectively, during the current payment period as long as the student was enrolled and eligible during the payment period covered by that prior year, late, or retroactive disbursement.
(3) At the time a disbursement is made to a student for a payment period, an institution must confirm that the student is eligible for the type and amount of title IV, HEA program funds identified by that disbursement. A third-party servicer is also responsible for confirming the student's eligibility if the institution engages the servicer to perform activities or transactions that lead to or support that disbursement. Those activities and transactions include but are not limited to—
(i) Determining the type and amount of title IV, HEA program funds that a student is eligible to receive;
(ii) Requesting funds under a payment method described in § 668.162; or
(iii) Accounting for funds that are originated, requested, or disbursed, in reports or data submissions to the Secretary.
(c)
(i) The amount of tuition, fees, and institutionally provided room and board
(ii) The amount incurred by the student for the payment period for purchasing books, supplies, and other educationally related goods and services provided by the institution for which the institution obtains the student's or parent's authorization under § 668.165(b).
(2) An institution may include the costs of books and supplies as part of tuition and fees under paragraph (c)(1)(i) of this section if —
(i) The institution—
(A) Has an arrangement with a book publisher or other entity that enables it to make those books or supplies available to students below competitive market rates;
(B) Provides a way for a student to obtain those books and supplies by the seventh day of a payment period; and
(C) Has a policy under which the student may opt out of the way the institution provides for the student to obtain books and supplies under this paragraph (c)(2). A student who opts out under this paragraph (c)(2) is considered to also opt out under paragraph (m)(3) of this section;
(ii) The institution documents on a current basis that the books or supplies, including digital or electronic course materials, are not available elsewhere or accessible by students enrolled in that program from sources other than those provided or authorized by the institution; or
(iii) The institution demonstrates there is a compelling health or safety reason.
(3)(i) An institution may include in one or more payment periods for the current year, prior year charges of not more than $200 for—
(A) Tuition, fees, and institutionally provided room and board, as provided under paragraph (c)(1)(i) of this section, without obtaining the student's or parent's authorization; and
(B) Educationally related goods and services provided by the institution, as described in paragraph (c)(1)(ii) of this section, if the institution obtains the student's or parent's authorization under § 668.165(b).
(ii) For purposes of this section—
(A) The current year is—
(
(
(
(B) A prior year is any loan period or award year prior to the current loan period or award year, as applicable.
(4) An institution may include in the current payment period unpaid allowable charges from any previous payment period in the current award year or current loan period for which the student was eligible for title IV, HEA program funds.
(5) For purposes of this section, an institution determines the prorated amount of charges associated with the current payment period by—
(i) For a program with substantially equal payment periods, dividing the total institutional charges for the program by the number of payment periods in the program; or
(ii) For other programs, dividing the number of credit or clock hours in the current payment period by the total number of credit or clock hours in the program, and multiplying that result by the total institutional charges for the program.
(d)
(i) To a student, for the amount of the title IV, HEA program funds that a student is eligible to receive, including Direct PLUS Loan funds that the student's parent authorized the student to receive, by—
(A) Initiating an EFT of that amount to the student's financial account;
(B) Issuing a check for that amount payable to, and requiring the endorsement of, the student; or
(C) Dispensing cash for which the institution obtains a receipt signed by the student;
(ii) To a parent, for the amount of the Direct PLUS Loan funds that a parent does not authorize the student to receive, by—
(A) Initiating an EFT of that amount to the parent's financial account;
(B) Issuing a check for that amount payable to and requiring the endorsement of the parent; or
(C) Dispensing cash for which the institution obtains a receipt signed by the parent.
(2)
(i) Mails the check to the student or parent; or
(ii) Notifies the student or parent that the check is available for immediate pick-up at a specified location at the institution. The institution may hold the check for no longer than 21 days after the date it notifies the student or parent. If the student or parent does not pick up the check, the institution must immediately mail the check to the student or parent, pay the student or parent directly by other means, or return the funds to the appropriate title IV, HEA program.
(3)
(4)
(A) In implementing its selection process, the institution must—
(
(
(
(
(
(
(B) In describing the options under its selection process, the institution—
(
(
(
(ii) An institution that does not offer or use any financial accounts offered under paragraph (e) or (f) of this section may make direct payments to a student's or parent's existing financial account, or issue a check or disburse cash to the student or parent without establishing the selection process described in paragraph (d)(4)(i) of this section.
(e)
(i) An institution located in a State has a contract with a third-party servicer under which the servicer performs one or more of the functions associated with processing direct payments of title IV, HEA program funds on behalf of the institution; and
(ii) The institution or third-party servicer makes payments to—
(A) One or more financial accounts that are offered to students under the contract;
(B) A financial account where information about the account is communicated directly to students by the third-party servicer, or the institution on behalf of or in conjunction with the third-party servicer; or
(C) A financial account where information about the account is communicated directly to students by an entity contracting with or affiliated with the third-party servicer.
(2) Under a T1 arrangement, the institution must—
(i) Ensure that the student's consent to open the financial account is obtained before an access device, or any representation of an access device, is sent to the student, except that an institution may send the student an access device that is a card provided to the student for institutional purposes, such as a student ID card, so long as the institution or financial institution obtains the student's consent before validating the device to enable the student to access the financial account;
(ii) Ensure that any personally identifiable information about a student that is shared with the third-party servicer before the student makes a selection under paragraph (d)(4)(i) of this section—
(A) Does not include information about the student, other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37, beyond—
(
(
(
(
(B) Is used solely for activities that support making direct payments of title IV, HEA program funds and not for any other purpose; and
(C) Is not shared with any other affiliate or entity except for the purpose described in paragraph (e)(2)(ii)(B) of this section;
(iii) Inform the student of the terms and conditions of the financial account, as required under paragraph (d)(4)(i)(B)(
(iv) Ensure that the student—
(A) Has convenient access to the funds in the financial account through a surcharge-free national or regional Automated Teller Machine (ATM) network that has ATMs sufficient in number and housed and serviced such that title IV funds are reasonably available to students, including at the times the institution or its third-party servicer makes direct payments into the financial accounts of those students;
(B) Does not incur any cost—
(
(
(
(v) Ensure that—
(A) The financial account or access device is not marketed or portrayed as, or converted into, a credit card;
(B) No credit is extended or associated with the financial account, and no fee is charged to the student for any transaction or withdrawal that exceeds the balance in the financial account or on the access device, except that a transaction or withdrawal that exceeds the balance may be permitted only for an inadvertently authorized overdraft, so long as no fee is charged to the student for such inadvertently authorized overdraft; and
(C) The institution, third-party servicer, or third-party servicer's associated financial institution provides a student accountholder convenient access to title IV, HEA program funds in part and in full up to the account balance via domestic withdrawals and transfers without charge, during the student's entire period of enrollment following the date that such title IV, HEA program funds are deposited or transferred to the financial account;
(vi) No later than September 1, 2016, and then no later than 60 days following the most recently completed award year thereafter, disclose conspicuously on the institution's Web site the contract(s) establishing the T1 arrangement between the institution and third-party servicer or financial institution acting on behalf of the third-party servicer, as applicable, except for any portions that, if disclosed, would compromise personal privacy, proprietary information technology, or the security of information technology or of physical facilities;
(vii) No later than September 1, 2017, and then no later than 60 days following the most recently completed award year thereafter, disclose conspicuously on the institution's Web site and in a format established by the Secretary—
(A) The total consideration for the most recently completed award year, monetary and non-monetary, paid or received by the parties under the terms of the contract; and
(B) For any year in which the institution's enrolled students open 30 or more financial accounts under the T1 arrangement, the number of students who had financial accounts under the contract at any time during the most recently completed award year, and the mean and median of the actual costs incurred by those account holders;
(viii) Provide to the Secretary an up-to-date URL for the contract for publication in a centralized database accessible to the public;
(ix) Ensure that the terms of the accounts offered pursuant to a T1 arrangement are not inconsistent with the best financial interests of the students opening them. The Secretary
(A) The institution documents that it conducts reasonable due diligence reviews at least every two years to ascertain whether the fees imposed under the T1 arrangement are, considered as a whole, consistent with or below prevailing market rates; and
(B) All contracts for the marketing or offering of accounts pursuant to T1 arrangements to the institution's students make provision for termination of the arrangement by the institution based on complaints received from students or a determination by the institution under paragraph (e)(2)(ix)(A) of this section that the fees assessed under the T1 arrangement are not consistent with or are higher than prevailing market rates; and
(x) Take affirmative steps, by way of contractual arrangements with the third-party servicer as necessary, to ensure that requirements of this section are met with respect to all accounts offered pursuant to T1 arrangements.
(3) Except for paragraphs (e)(2)(ii)(B) and (C) of this section, the requirements of paragraph (e)(2) of this section no longer apply to a student who has an account described under paragraph (e)(1) of this section when the student is no longer enrolled at the institution and there are no pending title IV disbursements for that student, except that nothing in this paragraph (e)(3) should be construed to limit the institution's responsibility to comply with paragraph (e)(2)(vii) of this section with respect to students enrolled during the award year for which the institution is reporting. To effectuate this provision, an institution may share information related to title IV recipients' enrollment status with the servicer or entity that is party to the arrangement.
(f)
(2) Under a T2 arrangement, an institution must—
(i) Comply with the requirements described in paragraphs (d)(4)(i), (f)(4)(i) through (iii), (vii), and (ix) through (xi), and (f)(5) of this section if it has at least one student with a title IV credit balance in each of the three most recently completed award years, but has less than the number and percentage of students with credit balances as described in paragraphs (f)(2)(ii)(A) and (B) of this section; and
(ii) Comply with the requirements specified in paragraphs (d)(4)(i), (f)(4), and (f)(5) of this section if, for the three most recently completed award years—
(A) An average of 500 or more of its students had a title IV credit balance; or
(B) An average of five percent or more of the students enrolled at the institution had a title IV credit balance. The institution calculates this percentage as follows:
(3) The Secretary considers that a financial account is marketed directly if—
(i) The institution communicates information directly to its students about the financial account and how it may be opened;
(ii) The financial account or access device is cobranded with the institution's name, logo, mascot, or other affiliation and is marketed principally to students at the institution; or
(iii) A card or tool that is provided to the student for institutional purposes, such as a student ID card, is validated, enabling the student to use the device to access a financial account.
(4) Under a T2 arrangement, the institution must—
(i) Ensure that the student's consent to open the financial account has been obtained before—
(A) The institution provides, or permits a third-party servicer to provide, any personally identifiable about the student to the financial institution or its agents, other than directory information under 34 CFR 99.3 that is disclosed pursuant to 34 CFR 99.31(a)(11) and 99.37;
(B) An access device, or any representation of an access device, is sent to the student, except that an institution may send the student an access device that is a card provided to the student for institutional purposes, such as a student ID card, so long as the institution or financial institution obtains the student's consent before validating the device to enable the student to access the financial account;
(ii) Inform the student of the terms and conditions of the financial account as required under paragraph (d)(4)(i)(B)(
(iii) No later than September 1, 2016, and then no later than 60 days following the most recently completed award year thereafter—
(A) Disclose conspicuously on the institution's Web site the contract(s) establishing the T2 arrangement between the institution and financial institution in its entirety, except for any portions that, if disclosed, would compromise personal privacy, proprietary information technology, or the security of information technology or of physical facilities; and
(B) Provide to the Secretary an up-to-date URL for the contract for publication in a centralized database accessible to the public;
(iv) No later than September 1, 2017, and then no later than 60 days following the most recently completed award year thereafter, disclose conspicuously on the institution's Web site and in a format established by the Secretary—
(A) The total consideration for the most recently completed award year, monetary and non-monetary, paid or received by the parties under the terms of the contract; and
(B) For any year in which the institution's enrolled students open 30 or more financial accounts marketed under the T2 arrangement, the number of students who had financial accounts under the contract at any time during the most recently completed award year, and the mean and median of the actual costs incurred by those account holders;
(v) Ensure that the items under paragraph (f)(4)(iv) of this section are posted at the URL that is sent to the Secretary under paragraph (f)(4)(iii)(B) of this section for publication in a centralized database accessible to the public;
(vi) If the institution is located in a State, ensure that the student accountholder can execute balance inquiries and access funds deposited in the financial accounts through surcharge-free in-network ATMs sufficient in number and housed and serviced such that the funds are reasonably available to the accountholder, including at the times the institution or its third-party servicer makes direct payments into them;
(vii) Ensure that the financial accounts are not marketed or portrayed as, or converted into, credit cards;
(viii) Ensure that the terms of the accounts offered pursuant to a T2 arrangement are not inconsistent with the best financial interests of the students opening them. The Secretary considers this requirement to be met if—
(A) The institution documents that it conducts reasonable due diligence reviews at least every two years to ascertain whether the fees imposed under the T2 arrangement are,
(B) All contracts for the marketing or offering of accounts pursuant to T2 arrangements to the institution's students make provision for termination of the arrangement by the institution based on complaints received from students or a determination by the institution under paragraph (f)(4)(viii)(A) of this section that the fees assessed under the T2 arrangement are not consistent with or are above prevailing market rates;
(ix) Take affirmative steps, by way of contractual arrangements with the financial institution as necessary, to ensure that requirements of this section are met with respect to all accounts offered pursuant to T2 arrangements; and
(x) Ensure students incur no cost for opening the account or initially receiving or validating an access device.
(xi) If the institution enters into an agreement for the cobranding of a financial account with the institution's name, logo, mascot, or other affiliation but maintains that the account is not marketed principally to its enrolled students and is not otherwise marketed directly within the meaning of paragraph (f)(3) of this section, the institution must retain the cobranding contract and other documentation it believes establishes that the account is not marketed directly to its enrolled students, including documentation that the cobranded financial account or access device is offered generally to the public.
(xii) Institutions falling below the thresholds described in paragraph (f)(2) of this section are encouraged to comply voluntarily with the provisions of paragraphs (d)(4)(i), (f)(4), and (f)(5) of this section.
(5) The requirements of paragraph (f)(4) of this section no longer apply with respect to a student who has an account described under paragraph (f)(1) of this section when the student is no longer enrolled at the institution and there are no pending title IV disbursements, except that nothing in this paragraph should be construed to limit the institution's responsibility to comply with paragraph (f)(4)(iv) of this section with respect to students enrolled during the award year for which the institution is reporting. To effectuate this provision, an institution may share information related to title IV recipients' enrollment status with the financial institution or entity that is party to the arrangement.
(g)
(h)
(2) A title IV, HEA credit balance must be paid directly to the student or parent as soon as possible, but no later than—
(i) Fourteen (14) days after the balance occurred if the credit balance occurred after the first day of class of a payment period; or
(ii) Fourteen (14) days after the first day of class of a payment period if the credit balance occurred on or before the first day of class of that payment period.
(i)
(i) If the student is enrolled in a credit-hour program offered in terms that are substantially equal in length, 10 days before the first day of classes of a payment period; or
(ii) If the student is enrolled in a credit-hour program offered in terms that are not substantially equal in length, a non-term credit-hour program, or a clock-hour program, the later of—
(A) Ten days before the first day of classes of a payment period; or
(B) The date the student completed the previous payment period for which he or she received title IV, HEA program funds.
(2) An institution may not—
(i) Make an early disbursement of a Direct Loan to a first-year, first-time borrower who is subject to the 30-day delayed disbursement requirements in 34 CFR 685.303(b)(5). This restriction does not apply if the institution is exempt from the 30-day delayed disbursement requirements under 34 CFR 685.303(b)(5)(i)(A) or (B); or
(ii) Compensate a student employed under the FWS program until the student earns that compensation by performing work, as provided in 34 CFR 675.16(a)(5).
(j)
(i) For a Direct Loan, the student is no longer enrolled at the institution as at least a half-time student for the period of enrollment for which the loan was intended; or
(ii) For an award under the Federal Pell Grant, FSEOG, Federal Perkins Loan, Iraq-Afghanistan Service Grant, and TEACH Grant programs, the student is no longer enrolled at the institution for the award year.
(2)
(i) The Secretary processed a SAR or ISIR with an official expected family contribution for the student for the relevant award year; and
(ii)(A) For a loan made under the Direct Loan program or for an award made under the TEACH Grant program, the institution originated the loan or award; or
(B) For an award under the Federal Perkins Loan or FSEOG programs, the institution made that award to the student.
(3)
(i) If the student withdrew from the institution during a payment period or period of enrollment, the institution must make any post-withdrawal disbursement required under § 668.22(a)(4) in accordance with the provisions of § 668.22(a)(5);
(ii) If the student completed the payment period or period of enrollment, the institution must provide the student or parent the choice to receive the amount of title IV, HEA program funds that the student or parent was eligible to receive while the student was enrolled at the institution. For a late disbursement in this circumstance, the institution may credit the student's ledger account as provided in paragraph (c) of this section, but must pay or offer any remaining amount to the student or parent; or
(iii) If the student did not withdraw but ceased to be enrolled as at least a half-time student, the institution may make the late disbursement of a loan under the Direct Loan program to pay for educational costs that the institution determines the student incurred for the period in which the student or parent was eligible.
(4)
(ii) An institution may not make a late second or subsequent disbursement of a loan under the Direct Loan program unless the student successfully completed the period of enrollment for which the loan was intended.
(iii) An institution may not make a late disbursement of a Direct Loan if the student was a first-year, first-time borrower as described in 34 CFR 685.303(b)(5) unless the student completed the first 30 days of his or her program of study. This limitation does not apply if the institution is exempt from the 30-day delayed disbursement requirements under 34 CFR 685.303(b)(5)(i)(A) or (B).
(iv) An institution may not make a late disbursement of any title IV, HEA program assistance unless it received a valid SAR or a valid ISIR for the student by the deadline date established by the Secretary in a notice published in the
(k)
(l)
(2) If an EFT to a student's or parent's financial account is rejected, or a check to a student or parent is returned, the institution may make additional attempts to disburse the funds, provided that those attempts are made not later than 45 days after the EFT was rejected or the check returned. In cases where the institution does not make another attempt, the funds must be returned to the Secretary before the end of this 45-day period.
(3) If a check sent to a student or parent is not returned to the institution but is not cashed, the institution must return the funds to the Secretary no later than 240 days after the date it issued the check.
(m)
(i) The institution could disburse the title IV, HEA program funds for which the student is eligible; and
(ii) Presuming the funds were disbursed, the student would have a credit balance under paragraph (h) of this section.
(2) The amount the institution provides to the student to obtain or purchase books and supplies is the lesser of the presumed credit balance under this paragraph or the amount needed by the student, as determined by the institution.
(3) The institution must have a policy under which the student may opt out of the way the institution provides for the student to obtain or purchase books and supplies under this paragraph (m). A student who opts out under this paragraph is considered to also opt out under paragraph (c)(2)(i)(C) of this section;
(4) If a student uses the method provided by the institution to obtain or purchase books and supplies under this paragraph, the student is considered to have authorized the use of title IV, HEA funds and the institution does not need to obtain a written authorization under paragraph (c)(1)(ii) of this section and § 668.165(b) for this purpose.
(a)
(2) Except in the case of a post-withdrawal disbursement made in accordance with § 668.22(a)(5), if an institution credits a student's account at the institution with Direct Loan, Federal Perkins Loan, or TEACH Grant program funds, the institution must notify the student or parent of—
(i) The anticipated date and amount of the disbursement;
(ii) The student's or parent's right to cancel all or a portion of that loan, loan disbursement, TEACH Grant, or TEACH Grant disbursement and have the loan proceeds or TEACH Grant proceeds returned to the Secretary; and
(iii) The procedures and time by which the student or parent must notify the institution that he or she wishes to cancel the loan, loan disbursement, TEACH Grant, or TEACH Grant disbursement.
(3) The institution must provide the notice described in paragraph (a)(2) of this section in writing—
(i) No earlier than 30 days before, and no later than 30 days after, crediting the student's ledger account at the institution, if the institution obtains affirmative confirmation from the student under paragraph (a)(6)(i) of this section; or
(ii) No earlier than 30 days before, and no later than seven days after, crediting the student's ledger account at the institution, if the institution does not obtain affirmative confirmation from the student under paragraph (a)(6)(i) of this section.
(4)(i) A student or parent must inform the institution if he or she wishes to cancel all or a portion of a loan, loan disbursement, TEACH Grant, or TEACH Grant disbursement.
(ii) The institution must return the loan or TEACH Grant proceeds, cancel the loan or TEACH Grant, or do both, in accordance with program regulations provided that the institution receives a loan or TEACH Grant cancellation request—
(A) By the later of the first day of a payment period or 14 days after the date it notifies the student or parent of his or her right to cancel all or a portion of a loan or TEACH Grant, if the institution obtains affirmative confirmation from the student under paragraph (a)(6)(i) of this section; or
(B) Within 30 days of the date the institution notifies the student or parent of his or her right to cancel all or a portion of a loan, if the institution does not obtain affirmative confirmation from the student under paragraph (a)(6)(i) of this section.
(iii) If a student or parent requests a loan cancellation after the period set forth in paragraph (a)(4)(ii) of this section, the institution may return the loan or TEACH Grant proceeds, cancel the loan or TEACH Grant, or do both, in accordance with program regulations.
(5) An institution must inform the student or parent in writing regarding the outcome of any cancellation request.
(6) For purposes of this section—
(i) Affirmative confirmation is a process under which an institution obtains written confirmation of the types and amounts of title IV, HEA program loans that a student wants for the period of enrollment before the institution credits the student's account with those loan funds. The process under which the TEACH Grant program is administered is considered to be an affirmative confirmation process; and
(ii) An institution is not required by this section to return any loan or TEACH Grant proceeds that it disbursed directly to a student or parent.
(b)
(i) Use the student's or parent's title IV, HEA program funds to pay for charges described in § 668.164(c)(1)(ii) or (c)(3)(i)(B) that are included in that authorization; and
(ii) Unless the Secretary provides funds to the institution under the reimbursement payment method or the heightened cash monitoring payment method described in § 668.162(c) or (d), respectively, hold on behalf of the student or parent any title IV, HEA program funds that would otherwise be paid directly to the student or parent as a credit balance under § 668.164(h).
(2) In obtaining the student's or parent's authorization to perform an activity described in paragraph (b)(1) of this section, an institution—
(i) May not require or coerce the student or parent to provide that authorization;
(ii) Must allow the student or parent to cancel or modify that authorization at any time; and
(iii) Must clearly explain how it will carry out that activity.
(3) A student or parent may authorize an institution to carry out the activities described in paragraph (b)(1) of this section for the period during which the student is enrolled at the institution.
(4)(i) If a student or parent modifies an authorization, the modification takes effect on the date the institution receives the modification notice.
(ii) If a student or parent cancels an authorization to use title IV, HEA program funds to pay for authorized charges under paragraph (a)(4) of this section, the institution may use title IV, HEA program funds to pay only those authorized charges incurred by the student before the institution received the notice.
(iii) If a student or parent cancels an authorization to hold title IV, HEA program funds under paragraph (b)(1)(ii) of this section, the institution must pay those funds directly to the student or parent as soon as possible but no later than 14 days after the institution receives that notice.
(5) If an institution holds excess student funds under paragraph (b)(1)(ii) of this section, the institution must—
(i) Identify the amount of funds the institution holds for each student or parent in a subsidiary ledger account designed for that purpose;
(ii) Maintain, at all times, cash in its depository account in an amount at least equal to the amount of funds the institution holds on behalf of the student or the parent; and
(iii) Notwithstanding any authorization obtained by the institution under this paragraph, pay any remaining balance on loan funds by the end of the loan period and any remaining other title IV, HEA program funds by the end of the last payment period in the award year for which they were awarded.
(a)
(1) Received those funds from the Secretary; or
(2) Deposited or transferred to its Federal account previously disbursed title IV, HEA program funds, such as those resulting from award adjustments, recoveries, or cancellations.
(b)
(c)
(1) Requiring the institution to reimburse the Secretary for the costs the Federal government incurred in providing that excess cash to the institution; and
(2) Providing funds to the institution under the reimbursement payment method or heightened cash monitoring payment method described in § 668.162(c) and (d), respectively.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the section or the application of its provisions to any person, act, or practice shall not be affected thereby.
Office of Postsecondary Education, Department of Education.
Final regulations.
The Secretary amends the regulations governing the William D. Ford Federal Direct Loan (Direct Loan) Program to create a new income-contingent repayment plan in accordance with the President's initiative to allow more Direct Loan borrowers to cap their loan payments at 10 percent of their monthly incomes. The Secretary is also implementing changes to the Federal Family Education Loan (FFEL) Program and Direct Loan Program regulations to streamline and enhance existing processes and provide additional support to struggling borrowers. These regulations will also amend the Student Assistance General Provisions regulations by expanding the circumstances under which an institution may challenge or appeal a draft or final cohort default rate based on the institution's participation rate index.
The regulations are effective July 1, 2016.
Implementation date: For the implementation dates of the included regulatory provisions, see the
For further information related to the Servicemembers Civil Relief Act (SCRA), the treatment of lump sum payments made under Department of Defense (DOD) student loan repayment programs for the purposes of public service loan forgiveness, and expanding the use of the participation rate index (PRI) challenge and appeal, Barbara Hoblitzell at (202) 502–7649 or by email at:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Purpose of This Regulatory Action: These final regulations will amend the Student Assistance General Provisions regulations governing Direct Loan cohort default rates (CDRs) to expand the circumstances under which an institution may challenge or appeal the potential consequences of a draft or final CDR based on the institution's PRI. In addition, we are implementing changes to the FFEL Program regulations to streamline and enhance existing processes and provide support to borrowers by establishing new procedures for FFEL Program loan holders to identify servicemembers who may be eligible for benefits under the SCRA. The final regulations will also require guaranty agencies to provide FFEL Program borrowers who are in the process of rehabilitating a defaulted loan with information on repayment plans available to them after the loan has been rehabilitated, as well as additional financial and economic education materials. We have also made several technical changes to the loan rehabilitation provisions contained in § 682.405. In addition, the final regulations will add a new income-contingent repayment plan, called the Revised Pay As You Earn repayment plan (REPAYE plan), to § 685.209. The REPAYE plan is modeled on the existing Pay As You Earn repayment plan, and will be available to all Direct Loan student borrowers regardless of when the borrower took out the loans. Finally, the regulations will allow lump sum payments made through student loan repayment programs administered by the DOD to count as qualifying payments for purposes of the Public Service Loan Forgiveness Program.
Summary of the Major Provisions of This Regulatory Action:
To expand the circumstances under which an institution may challenge or appeal the potential consequences of a draft or official CDR based on the institution's PRI, the final regulations-–
• Permit an institution to bring a timely PRI challenge or appeal in any year in which the institution's CDR is less than or equal to 40 percent, but greater than or equal to 30 percent, for any of the three most recently calculated fiscal years.
• Provide that an institution will not lose eligibility based on three years of official CDRs that are less than or equal to 40 percent, but greater than or equal to 30 percent, and will not be placed on provisional certification based on two such rates, if it brings a timely appeal or challenge with respect to any of the relevant rates and demonstrates a PRI less than or equal to 0.0625, provided that the institution has not brought a PRI challenge or appeal with respect to that rate before, and that the institution has not previously lost eligibility or been placed on provisional certification based on that rate.
• Provide that a successful PRI challenge with respect to a draft CDR is effective not only in preventing imposition of sanctions upon issuance of the official CDR for that year, but in preventing the institution from being placed on provisional certification or losing eligibility in subsequent years based on the official CDR for that year if the official rate is less than or equal to the draft rate.
To reduce the burden on military servicemembers who may be entitled to an interest rate reduction under the SCRA, the final regulations—
• Require FFEL Program loan holders to proactively use the authoritative database maintained by the DOD to begin, extend, or end, as applicable, the SCRA interest rate limit of six percent.
• Permit a borrower to use a form developed by the Secretary to provide the loan holder with alternative evidence of military service to demonstrate eligibility when the borrower believes that the information contained in the DOD database may be inaccurate or incomplete.
In regard to loan rehabilitation, the final regulations—
• Assist with the transition to loan repayment for a borrower who rehabilitates a defaulted loan, by requiring a guaranty agency to: Provide each borrower with whom it has entered into a loan rehabilitation agreement with information on repayment plans available to the borrower after rehabilitating the defaulted loan; explain to the borrower how to select a repayment plan; and provide financial and economic education materials to borrowers who successfully complete loan rehabilitation.
• Amend § 682.405 with respect to the cap on collection costs that may be added to a rehabilitated loan when it is sold to a new holder and the treatment of rehabilitated loans for which the guaranty agency cannot secure a buyer, to conform with the Higher Education Act of 1965, as amended (HEA).
To establish a new, widely available income-contingent repayment plan targeted to the neediest borrowers, the REPAYE regulations—
• Provide that, for each year a borrower is in the REPAYE plan, the borrower's monthly payment amount is recalculated based on income and family size information provided by the borrower. If a process becomes available in the future that allows borrowers to give consent for the Department of Education (the Department) to access their income and family size information from the Internal Revenue Service (IRS) or another Federal source, the regulations will allow use of such a process for recalculating a borrower's monthly payment amount.
• In the case of a married borrower filing a separate Federal income tax return, use the adjusted gross income (AGI) of both the borrower and the borrower's spouse to calculate the monthly payment amount. A married borrower filing separately who is separated from his or her spouse or who is unable to reasonably access his or her spouse's income is not required to provide his or her spouse's AGI.
• Limit the amount of interest charged to the borrower of a subsidized loan to 50 percent of the remaining accrued interest when the borrower's monthly payment is not sufficient to pay the accrued interest (resulting in negative amortization). This limitation applies after the consecutive three-year period during which the Secretary does not charge the interest that accrues on subsidized loans during periods of negative amortization.
• Limit the amount of interest charged to the borrower of an unsubsidized loan to 50 percent of the remaining accrued interest when the borrower's monthly payment is not sufficient to pay the accrued interest (resulting in negative amortization).
• For a borrower who only has loans received to pay for undergraduate study, provide that the remaining balance of the borrower's loans that have been repaid under the REPAYE plan is forgiven after 20 years of qualifying payments.
• For a borrower who has at least one loan received to pay for graduate study, provide that the remaining balance of the borrower's loans that have been repaid under the REPAYE plan is forgiven after 25 years of qualifying payments.
• Provide that, if the borrower does not provide the income information needed to recalculate the monthly repayment amount, the borrower is removed from the REPAYE plan and placed in an alternative repayment plan. The monthly payment amount under the alternative repayment plan will equal the amount required to pay off the loan within 10 years from the date the borrower begins repayment under the alternative repayment plan, or by the end date of the 20- or 25-year REPAYE plan repayment period, whichever is earlier.
• Allow the borrower to return to the REPAYE plan if the borrower provides the Secretary with the income information for the period of time that the borrower was on the alternative repayment plan or another repayment plan. If the payments the borrower was required to make under the alternative repayment plan or the other repayment plan are less than the payments the borrower would have been required to make under the REPAYE plan, the borrower's monthly REPAYE payment amount will be adjusted to ensure that the excess amount owed by the borrower is paid in full by the end of the REPAYE plan repayment period.
• Provide that payments made under the alternative repayment plan will not count as qualifying payments for purposes of the Public Service Loan Forgiveness Program, but may count in determining eligibility for loan forgiveness under the REPAYE plan, the income-contingent repayment plan, the income-based repayment plan, or the Pay As You Earn repayment plan (each of these plans may be referred to as an “income-driven repayment plan” or “IDR plan”) if the borrower returns to the REPAYE plan or changes to another income-driven repayment plan.
There will be costs incurred by guaranty agencies under these regulations. In particular, guaranty agencies will be required to make information about repayment plans available to borrowers during the rehabilitation process.
On July 9, 2015, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the
Consistent with the Department's objective to ensure all borrowers with Federal student loans can use a loan repayment plan that caps their monthly payments at an affordable amount, the Secretary is exercising his authority under section 482(c) to implement the new and amended regulations specific to the REPAYE repayment plan included in this document in December 2015.
The implementation of the regulations that expand availability of PRI challenges and appeals from the potential consequences of an institution's CDR is predicated on the automated support that will be provided through the implementation of the Data Challenges and Appeals Solutions (DCAS) system within the Department's Federal Student Aid office. The DCAS system is slated for implementation in 2017. We will publish a separate
The Secretary has not designated any of the remaining provisions in these final regulations for early implementation. Therefore, the remaining final regulations included in this document are effective July 1, 2016.
We received many recommendations from commenters to make other changes to the Federal student loan programs. Generally, we do not address recommendations that are out of the scope of this regulatory action, or that would require statutory changes, in this preamble.
As an alternative, one commenter recommended that we create a process under which a borrower who repaid a parent PLUS loan through a consolidation loan could somehow recreate the parent PLUS loan by removing it from the consolidation loan, so the consolidation loan can be repaid under the REPAYE plan, or be grandfathered into another more affordable repayment plan. The commenter argued that this would help borrowers who consolidated their student loans with parent PLUS loans without understanding the financial consequences.
Contrary to the commenter's suggestion, there is no basis for the Department to “recreate” a PLUS loan that was intentionally repaid by the borrower through consolidation. A loan can be “backed out” of a consolidation loan and reconstituted only if the loan was included in the consolidation loan by error after the borrower requested that the loan not be included. Therefore, the situation described by the commenter would not qualify for this treatment.
• All borrowers, regardless of when they obtained student loans.
• Borrowers with government loans disbursed prior to October 2007.
• Borrowers with FFEL Program loans who are repaying the loans through the IBR repayment plan
• FFEL Stafford Loan borrowers.
While borrowers with FFEL loans may repay those loans under the IBR plan, REPAYE is an ICR plan and is only available to Direct Loan borrowers. Borrowers with FFEL loans may pay their loans under the REPAYE plan if they consolidate their loan(s) into a Direct Consolidation Loan, and then pay the consolidation loan under the REPAYE plan.
One commenter stated that the REPAYE plan rightly reflects the Department's interest in expanding income-driven repayment to all borrowers, while ensuring that the benefits of an IDR plan remain targeted toward the most at-risk individuals. The commenter also noted that the regulations take important steps to keep the costs of income-based repayment reasonable. The commenter supported the decisions, discussed in more detail in the following sections, to: Not establish a cap on monthly payment amounts to ensure that high-income borrowers pay their fair share; require that payments for married borrowers be based on their combined income; and include provisions to discourage borrowers from intentionally failing to report their income accurately when they experience a significant increase in earnings.
Commenters also supported the decision not to require borrowers to have a partial financial hardship (PFH) to select the REPAYE plan. As one commenter noted, this decision allows borrowers to select the REPAYE plan regardless of their debt-to-income ratio, and provides all Direct Loan student borrowers with a repayment plan that allows their payments to reflect their income. Those who earn less will pay less, and those who earn more will pay more.
Not all commenters supported the REPAYE plan. One commenter believed that the REPAYE plan would have a
Several commenters opposed to the REPAYE plan viewed the plan as a loan forgiveness plan, and argued that it would provide an incentive to institutions to continue the constant escalation of education costs. These commenters felt strongly that individuals should take responsibility for how they choose to pursue and fund their educations, and it should not be the taxpayers' responsibility to pay for those who choose to spend irresponsibly.
We acknowledge that the REPAYE plan might not be the best option for all borrowers and encourage law school graduates and all borrowers to learn about their options and select the repayment plan that they believe will work best for them.
We understand the desire for a more simplified approach to borrower repayment. But, with millions of student loan borrowers in repayment, it is not practical for the Department to make case-by-case loan forgiveness determinations.
We appreciate the concerns raised by several commenters who do not support REPAYE. We agree that borrowers are responsible for repaying their student loans, and we believe that most borrowers repaying their loans under the REPAYE plan will be successful in repaying their loans, in many cases before the end of the 20- or 25-year repayment period. However, we also believe the REPAYE plan will provide relief to struggling borrowers who experience financial difficulties that prevent them from repaying their loans. We note that the REPAYE plan requires 20 or 25 years of qualifying payments before a loan is forgiven. We also note that under the REPAYE plan, while lower-income borrowers will make reduced payments, higher-income borrowers will make increased payments. Given these characteristics of the REPAYE plan, we do not believe the plan will encourage irresponsible over-borrowing by students.
One commenter noted that, in 2014, President Obama announced his intention to make student loans more affordable by extending the current Pay As You Earn repayment option to an additional five million borrowers with loans too old to qualify under the Pay As You Earn rules. According to this commenter, many financial aid administrators thought that modifications would be made to the current Pay As You Earn repayment plan as a result of the President's announcement. Many commenters preferred this approach, urging the Department to support the extension of the existing Pay As You Earn repayment plan to cover additional borrowers, rather than create the REPAYE plan.
Several commenters expressed support for streamlining the multiple IDR plans into one improved IDR plan that would cap monthly payments at 10 percent of income, provide loan forgiveness after 20 years of payments, and target benefits to borrowers who need help the most. These commenters recognized that this would require statutory changes. The commenters believed that the REPAYE plan, with certain modifications, would become an excellent model for Congress to consider when developing a single, streamlined IDR plan. Similarly, another commenter recommended that, instead of creating new processes and options, the Department work towards a unified, simplified standard for borrowers going forward that is less complex and burdensome.
Some commenters recommended reducing the number of repayment plans to two: A standard repayment plan and the REPAYE plan as the only income-driven repayment plan. They noted that this would simplify student loan repayment options.
One commenter noted that, with the addition of REPAYE, there will be eight different repayment plans with different terms and eligibility requirements. Borrowers will have to navigate many options that look similar but have complex differences that may not be immediately obvious. The commenter contended that an abundance of options with varying terms and benefits can confuse borrowers and make choosing a repayment plan difficult. This commenter believed that providing better information and assistance with making the best choice could help increase the benefits of the REPAYE plan and other income-driven plans. Commenters encouraged the Department to explore streamlining and improving the loan repayment and forgiveness programs that are already in place to ensure borrowers receive clear and thorough information regarding their repayment options.
Contrary to the suggestion by some commenters, the Department's motivation in developing the REPAYE plan is not to maximize government revenue. If that were our goal, the simplest way to achieve it would be to not offer any income-driven repayment plans that provide for loan forgiveness. Instead, our goal with the REPAYE plan is two-fold: to create an income-driven repayment plan that requires a reasonable monthly payment amount from those borrowers who can afford it; and to provide relief to struggling borrowers who may still have large outstanding balances after years of making payments on their student loans.
We thank the commenters for their recommendation that the REPAYE plan be the model for a single income-driven repayment plan. However, as the commenters noted, such a change would require congressional action.
We reiterate our intention to provide clear, understandable information regarding the various Federal student loan repayment plans, to enable borrowers to make informed choices when selecting repayment plans.
As noted by one commenter, the costs of the REPAYE plan to taxpayers will be kept reasonable by ensuring that married borrowers' incomes are properly captured for purposes of determining the appropriate payment amount. The definition of AGI in the REPAYE regulations ensures that borrowers cannot manipulate the system to qualify for lower payments than other similarly-situated borrowers.
One commenter expressed concern that counting the AGI of the spouse for married borrowers who file separately could have unintended consequences. Because the treatment of married borrowers' income under REPAYE would be inconsistent with the treatment in the other income-driven repayment plans, the commenter expressed concern that this may lead to confusion, particularly among struggling borrowers who may already have difficulty navigating the characteristics of the different income-driven repayment plans. The commenter noted that the approach used in the REPAYE plan may lead to higher payments for some married borrowers who file taxes separately for a myriad of practical reasons, and who already accept significant financial consequences as a result of filing separate tax returns. The commenter supported the Department's goal of ensuring that borrowers do not “game” the system. However, the commenter expressed concern that many borrowers whose tax filing decisions are not determined by their title IV loan repayment options will be hurt under the REPAYE plan. The commenter asked whether the Department could adopt for the REPAYE plan the methodology used in the other income-driven repayment plans, with some additional protections, if needed, to prevent abuse. Along these lines, the commenter proposed including an income threshold under which married borrowers filing separately may repay their loans under the REPAYE plan based on their individual incomes. This would ease the difficulty for struggling borrowers while closing a loophole for married borrowers who may be more financially secure than single borrowers.
Several commenters were opposed to the proposed definition of AGI. These commenters believed that combining the AGIs of spouses who file separately would encourage borrowers to divorce and continue to cohabitate with the former spouse in order to prevent their student loan payments from increasing. One commenter argued that the provision will lead to the degradation of the concept of marriage by encouraging people to live together unmarried and have children out of wedlock.
Another commenter believed that the proposed AGI definition would shift the burden of student loan payments to married couples from single borrowers, increasing married couples' payment requirements under the REPAYE plan.
One commenter believed that the proposed AGI definition would, in effect, take the decision to file income taxes separately out of the married couple's hands.
Several commenters noted that they acquired their student loan debt before they met their spouse, and did not believe the spouse should be held accountable for their debt. Several commenters noted that a married couple could easily have a financial arrangement in which one spouse does not receive any financial benefit from the other, even if the other has taxable income. One commenter noted that student loan payments based on the combined AGI of borrowers who file separately may not be something that a married couple has budgeted or can afford.
Commenters noted that married borrowers who file a separate tax return already lose substantial tax benefits by filing separately with the elimination of various tax deductions and/or credits.
Another commenter recommended a uniform AGI calculation for both single and married borrowers, arguing that the tax penalty of filing taxes separately makes the REPAYE plan not helpful for married borrowers in most cases.
Some commenters offered counter-proposals to the proposed definition of AGI. One commenter proposed allowing a married borrower the same AGI calculation as a single borrower, provided that the married borrower would not qualify for any student loan forgiveness. Another commenter recommended allowing borrowers in public sector jobs to use their individual AGI for REPAYE calculations regardless of marital status.
One commenter proposed combining the AGI of two spouses and dividing that number by two instead of counting all of the spouse's AGI. As an alternative to this proposal the commenter recommended adding one-half of the spouse's AGI to the borrower's AGI. The commenter believed that this approach would recognize that almost all spouses will have expenses of their own, so not all of their income is actually available for repayment of the borrower's student loans. But it would also reflect the fact that, typically, some of a spouse's income is available for this purpose.
Commenters also asserted that the spouse's income should not be considered unless the married couple's loans can be added together even if they are from different loan providers, or unless both spouses cosigned the loans.
One commenter stated that borrowers who qualify for the REPAYE plan will also qualify for IBR. A borrower who is married to a spouse with, for example, the same amount of AGI as the borrower, and who wanted to avoid the higher repayment under the Department's formula could simply elect IBR instead of the REPAYE plan. The person would pay 15 percent rather than 10 percent of discretionary income, but would still save money compared to using the REPAYE plan. Many married borrowers would thereby be discouraged from using the REPAYE plan.
Some commenters suggested that the definition of AGI was not consistent with the law. These commenters asserted that computing the AGI of all married borrowers by adding the incomes of the spouses is inconsistent with 20 U.S.C. 1087e(e)(2), and beyond the statutory authority of the Department. According to the commenters, the Department is only authorized to base the repayment schedule on the AGI of the borrower, unless the borrower files a joint return.
Two commenters raised constitutional concerns, asserting that the approach under the REPAYE plan stigmatizes and disincentives marriage and is contrary to both the recent Supreme Court decision that finds a dignity right to marriage and to the classical equal protections afforded by the 14th Amendment.
As the commenters noted, married borrowers who file separately already lose some tax benefits by filing separately, as they are not able to take advantage of various tax deductions and/or tax credits. The treatment of a spouse's AGI for the purpose of determining the payment amount under the REPAYE plan would simply be another factor that a married couple considers when determining how to file their income tax return. Depending on the couple's circumstances, filing separately may or may not continue to be advantageous for the couple. Either way, a married couple always has the option to either file separately or file jointly.
While we acknowledge the commenters' concerns that the proposed treatment of married borrowers may incentivize divorce and cohabitation, it seems highly unlikely that a couple that wishes to marry (or remain married) would give that up for the 20- or 25-year REPAYE repayment period to lower their student loan payments. With regard to borrowers who are currently repaying their loans through IBR or the Pay As You Earn repayment plan, and have budgeted their student loan payments based on only counting the AGI of the borrower, the definition of AGI for purposes of those repayment plans is not changing. The only borrowers affected by the definition of AGI in the REPAYE regulations will be those borrowers who select the REPAYE plan.
With regard to some of the other comments that we received on the AGI definition:
• We agree that unless the borrowers have a joint consolidation loan, a borrower's spouse is not responsible for paying the borrower's student loan debt. The definition of AGI does not affect that.
• The definition of AGI does not shift the burden of student loan payments from single borrowers to married borrowers. The payments made by married borrowers have no impact on the payments made by single borrowers, and vice versa.
• There are many differences between the REPAYE plan and the other IDR plans. We believe that the difference with regard to the definition of AGI is fairly easily explained to borrowers, and will not be particularly confusing to struggling borrowers in their choice of an IDR plans.
• The definition of AGI recognizes the reality that, to one degree or another, most married borrowers operate as a single economic unit.
• We agree that the difference in the treatment of AGI for married borrowers may encourage some borrowers to select or stay in IBR or the Pay As You Earn repayment plan. Our intent in providing a choice of IDR plans is to provide borrowers with the option to choose among repayment plans. We encourage borrowers to select the repayment plan that the borrowers believe works best for them.
• We disagree that the treatment of a married couple's income because of a tax filing status chosen by the borrower for purposes of determining student loan payments under a repayment plan voluntarily chosen by the borrower has any impact on the borrower's rights.
We appreciate the comments we received suggesting alternative approaches to the treatment of married borrowers who file income taxes separately. The commenter who recommended establishing an income threshold above which married borrowers' payments would be based on their combined AGIs and below which payments would be based on individual AGIs didn't suggest a threshold amount. Any amount that we chose for this purpose could be deemed arbitrary. In addition, such an approach would potentially create a cliff effect, in which a borrower slightly above the threshold would have much higher payments than a borrower slightly below the threshold.
The commenter who recommended that we consider only one-half of the spouse's AGI provided no basis for the assumption that that half of a spouse's income would commonly be for the spouse's own expenses. Neither did the commenter provide support for the claim that married couples tend to separate expenses such as food or health care between each spouse, rather than treat them as joint expenses for the married couple. With regard to the commenter's alternative suggestion that we add the AGI of both borrowers and divide by two, we note that, this would significantly reduce the calculated AGI for a high-income borrower with a low-income spouse.
We do not agree with the legal arguments made by some commenters. Section 455(e)(2) of the HEA provides that a repayment amount for a Direct Loan repaid under an ICR plan by a borrower who is married and files a joint Federal income tax return with his or her spouse is based on the AGI of both the borrower and the spouse. The statute does not address the situation in which the borrower and his or her spouse file separate Federal income tax returns. Moreover, section 455(e)(1) of the HEA provides that the Secretary may obtain information that is reasonably necessary regarding the income of a borrower and the borrower's spouse if applicable for the purpose of determining the annual repayment obligation of the borrower. Thus, the statute leaves it up to the Secretary to determine what AGI to consider in the case of a married borrower who files a separate income tax return. In fact, between July 1, 1996 and 2012, the payment amount under ICR for married borrowers who filed separate Federal income tax returns was based on the joint AGI. See 34 CFR 685.209(b)(1) (2009).
As one commenter noted, the vast majority of married borrowers file joint tax returns due to the monetary advantage it provides. In this commenter's view, married borrowers who file separately are likely to be estranged from their spouses or otherwise unable to access their spouse's income. In some cases, these
Another commenter supported the Department's decision to allow vulnerable married borrowers who file their taxes separately to calculate their REPAYE payment based upon the borrower's adjusted gross income without a cumbersome appeal process.
One commenter expressed concern that, by requiring a borrower to certify that he or she is unable to reasonably access the spouse's income information, the requirements to qualify for this exception will place too heavy a burden on the borrowers it is meant to help. The commenter asked the Department to clarify this certification process and confirm that no additional documents or verification will be required for this exemption, to ensure that struggling borrowers are not faced with further hardship.
Another commenter expressed concern about the proposed exception, arguing that it would encourage two methods for evading the requirement to add spousal AGI. The commenter suggested that some sophisticated married couples will simply arrange to have separate and secret bank accounts, decline to share pay stubs, and file separate tax returns in order to reduce a borrower's student loan repayments without having to divorce. The commenter suggested that blogs will quickly spread suggestions for how to do this.
The commenter also suggested that borrowers who want to evade the requirement will not bother to have their spouse keep separate income information, but will falsely claim that they have no access to such information instead. According to the commenter, if the Department simply accepts such claims, some borrowers will unfairly benefit, and if the Department contests borrower claims that their spouse's income information cannot be accessed, it will lead to controversies and lawsuits at great expense to taxpayers.
We note that the strategies suggested by the commenter who raised concerns that some borrowers might try to evade higher payments by hiding income or falsifying the certification form would be fraudulent. We expect that most borrowers would be deterred from falsifying information on a Federal application form by the significant penalties that can be applied. We believe the benefits of providing these exceptions outweigh the costs that could result if some borrowers falsify information in violation of Federal law.
The commenter acknowledged that the issue is not the borrower's inability to access income information of the spouse, since the spouses would have already filed a joint tax return. But, the commenter argued, if the borrower is separated from his or her spouse, the borrower would not have the joint resources with which to make the monthly payment amount that would be required under the REPAYE plan. In this situation, in the view of the commenter, the joint tax filing status would unfairly impact the monthly payment amount of the borrower.
To exclude the spouse's income from the monthly payment calculation in these cases, the commenter recommended revising the definitions of “adjusted gross income” and “partial financial hardship” in § 685.209(c)(1) and the formula for calculating the monthly payment amount in § 685.209(c)(2)(i). The commenter also recommended that the definition of “family size” be modified to exclude a borrower's spouse if the borrower and the spouse are separated, regardless of whether the borrower and the spouse filed jointly or separately.
In cases where couples have separated their finances and the joint AGI reported on the borrower's Federal tax return is no longer applicable to the borrower, the borrower may submit alternative documentation of income, as allowed by § 685.209(c)(4)(i)(B). The borrower would be required to provide alternative documentation to the borrower's loan servicer. If the documentation provided is approved by the Department, it would be used in place of the prior year's AGI. This process would most commonly be used in cases where a borrower has lost a job, but the process also would be used for the situation discussed by the commenter, with no need for changes to the regulation.
We agree with the commenter that a borrower's spouse should be excluded from the determination of the borrower's family size if the borrower is separated, regardless of the tax filing status of the borrower and the spouse.
Other proposals included:
• Factoring in private student loan payments.
• Using take-home pay, after withholding of taxes, insurance, retirement payments, and other items.
• Exempting Social Security income from consideration.
• Taking into account judicial actions against the borrower that impact ability to repay (such as alimony or child support orders or Chapter 13 mandated payments).
• Factoring in child care costs.
• Taking into consideration the debt/loan ratio based on regional markets, such as city/state, instead of using the Federal poverty guidelines.
• Considering the cost of living, specifically in high-rent areas where yearly income may not be an adequate reflection of disposable income.
• Including house mortgages in the calculation of overall debt burden.
• Considering total debt-to-income ratio.
One commenter recommended that the REPAYE plan provide an option to reduce the payment amount to 5 percent of AGI, with a 40-year repayment period. Another commenter recommended that the Department lower the payment amount cap to five percent, and take other bills into account.
Several commenters recommended that, in establishing a formula for calculating the monthly payment amount, we consider the implications of loan repayment on those who retire at a normal retirement age. One of these commenters recommended restructuring repayment conditions for those who are of normal retirement age or older, to provide for a higher allowance of income not counted toward setting the loan repayment amount, for set-asides such as medical expenses.
One commenter noted that income may change from month to month, and suggested that borrowers should not have to file for a loan amount redetermination every month.
One commenter recommended excluding a spouse's eligible loans from the determination of the borrower's payment amount when a married borrower files a separate tax return because he or she is separated from his or her spouse or is unable to obtain his or her spouse's income at the time of application for the REPAYE plan.
We appreciate the many recommendations for modifications to the formula for determining monthly payment amounts. However, we believe each of the proposed revisions to the formula would be difficult to implement, and would create inconsistencies with the existing income-driven repayment plans that would be confusing for borrowers.
The recommendation for an option for a longer repayment period of 40 years would not be consistent with the HEA, which sets a maximum length for the repayment period in an ICR plan at 25 years.
Lowering the cap to five percent of disposable income without extending the repayment period, as one commenter suggested, would significantly increase the costs of the REPAYE plan. It would cut in half the monthly payment amounts the Department receives and would increase the amount of the outstanding loan balance that is forgiven at the end of the 20- to 25-year repayment period.
The recommendation to “take other bills into account” is too vague for us to address with specificity because the commenter does not identify which types of bills the Department should consider. But any process to reduce the monthly payment amount by subtracting all or some of the borrower's bills from the calculation would be complicated for the Department to administer, and would require borrowers to meet additional documentation requirements both in the initial application process and the recertification process.
We do not believe it is necessary to adjust the monthly payment amount formula for borrowers who retire at the standard retirement age. The determination of the monthly repayment amount uses AGI as a measure of income. After a borrower retires, the monthly payment amount calculated based on the borrower's income when the borrower was employed may no longer be applicable. However, the reduction in income will be reflected in the borrower's AGI and will result in a corresponding reduction in the monthly payment amount. Since the payment amount is already limited to 10 percent of the amount by which the AGI exceeds the applicable poverty guideline amount, we do not believe that reducing the payment amount further, by taking into consideration certain expenses for retirees that we do not take into consideration otherwise, is necessary.
The comment about incomes changing from month to month may be true in many cases. But some measure of income must be used to determine payments under an income-based repayment plan. We believe AGI is the simplest way to do that, and easiest for borrowers to report. It also accounts for borrowers who may have fluctuating month-to-month incomes, by relying on income for the complete calendar year.
We disagree with the comment that recommended excluding a spouse's eligible loans from the determination of the borrower's payment amount when a married borrower files a separate tax return because he or she is separated from his or her spouse or is unable to obtain his or her spouse's income at the time of application for REPAYE. While the spouse's income information may be unavailable to the borrower, the Department will be able to identify the eligible loans owed by the spouse, and take those loans into consideration when making its determinations. Although spouses are not responsible for repaying each other's loans unless the loans have been consolidated, under
Several commenters supported not including a cap on the payment amount, believing that this change increases program fairness by requiring higher-income borrowers to pay the same share of their income as lower-income
A commenter noted that one concern about the other income-driven payment plans is that individuals whose incomes rise dramatically over time may still receive loan forgiveness because they are never required to pay more than what they would owe under the 10-year standard plan. This raises the costs for the Federal government and targets benefits away from the most at-risk borrowers. The REPAYE plan addresses this issue by removing that payment cap so that high earners will still pay 10 percent of their discretionary income even if that amount is above what they would owe on the standard 10-year plan. The commenter further noted that borrowers in the REPAYE plan will have the option to switch to the standard 10-year plan if they desired, but payments under the standard plan will not count toward forgiveness. The commenter suggested that the REPAYE plan might also be a favorable option for higher-income earners wishing to pay off their loan balance faster than 10 years.
One commenter contended that the ability to switch to another repayment plan without penalty defeats the purpose of not having a payment amount cap. A borrower who has a dramatic rise in income could easily switch to another repayment plan to avoid the higher monthly payment. This commenter also noted that high-income borrowers can easily select a different plan at the outset of repayment.
One commenter suggested that it might not be beneficial to the Federal government for a high-income borrower to remain in the REPAYE plan. With no monthly payment amount cap, payments by high-income borrowers who remain in REPAYE will accelerate, and the borrower will pay off the loan faster. While this would benefit the borrower, it would correspondingly deprive the Department of additional revenue. The commenter argued that, given the government's low borrowing rates, it would be in the interest of the Department (and taxpayers) to keep these loans outstanding for as long as possible, particularly for borrowers in a negative amortization situation, who are paying the full interest charge.
Other commenters opposed the absence of a payment amount cap in the REPAYE plan. One commenter stated that the purpose of the REPAYE plan should be to help relieve the stress borrowers and their families experience from student loan debt. Without a cap on the monthly payment amount, as in other income-driven repayment plans, a borrower will have to pay potentially ever-increasing amounts if the borrower receives a pay raise each year. The commenter contended that this reduces incentives for borrowers to seek higher incomes, especially when Federal and State tax brackets take higher percentages out at higher-income levels. The commenter further argued that a cap on monthly payments would give borrowers and families a better chance at buying other things, such as a house, which would in turn bring more money into local economies.
Another commenter proposed making a payment cap available to borrowers working in public service who will be eligible for forgiveness after 10 years.
We disagree with the comment that high-income earners will switch out of the REPAYE plan, or select a different repayment plan at the outset, rather than pay under the REPAYE plan. Both the IBR plan and the Pay As You Earn repayment plan require a borrower to have a PFH to qualify for the plan. It is unlikely that a high-income borrower would meet this requirement. The standard repayment plan does not have an eligibility criterion based on income but also does not provide for loan forgiveness.
Moreover, the Department is not trying to steer borrowers into one repayment plan over another. We believe borrowers should make informed decisions about the repayment plans that they choose, and we encourage borrowers to select the repayment plan that they believe will work best for them.
We disagree with the commenter who suggested that it would be more beneficial to the Federal government to keep borrowers in repayment as long as possible. It is not the Department's goal to use income-driven repayment plans to maximize revenues. Our goal for these plans is to provide options to borrowers that make it easier for them to repay their loans.
We also disagree with the comment that the absence of a payment cap will reduce incentives for borrowers to seek higher incomes. While a pay raise that results in increased AGI would increase a borrower's monthly payments under the REPAYE plan, few borrowers will forgo a pay raise for that reason. Pay raises frequently result in additional expenses and tax withholding. The commenter did not provide any evidence demonstrating that individuals regularly make a conscious choice not to seek a higher-paying job to avoid the additional expenses that come with a higher income.
With regard to borrowers who are making qualifying payments under the Public Service Loan Forgiveness Program, we believe that such borrowers should make payments on their student loans commensurate with their income. High-income borrowers qualifying for public service loan forgiveness could conceivably receive extensive loan forgiveness at the end of their 10 years of qualifying payments. We do not believe such borrowers should have both the benefit of an income-driven repayment plan when their incomes are low, and then have their increased incomes shielded from the monthly payment calculation when their incomes increase.
We believe that a notice specifically informing borrowers of the option to switch to another repayment plan could be confusing for borrowers. It could result in borrowers switching to repayment plans that are less beneficial to them, or create misunderstandings and confusion among borrowers. Therefore, we disagree with the recommendation to provide such notices.
The commenters noted that capping the accrual of unpaid interest for borrowers who are in negative amortization is a targeted benefit that helps minimize the growth of loan balances for borrowers with low incomes relative to their debt.
Other commenters believed that adding on 50 percent of the remaining interest cost would still be a hardship to people with incomes at the level of 150
One commenter stated that the assumption that amortization is taking place in the course of loan repayment, so that after several years the amount of interest is low, and that 50 percent of the interest would not be a large amount, is a false assumption. For some borrowers, the accumulation of interest means that after many years of making payments, the current balance is larger than the original amount borrowed. The commenter believed that, for borrowers in this situation, the new rules will result in a slight, but not very significant, discount.
As noted by one commenter, even with the amount of unpaid interest each month not covered by the minimum monthly payment being reduced by 50 percent, a borrower might still pay a lot more than the original principal of the loan. According to this commenter, this increase might more than offset the reduced monthly payment on the REPAYE plan (10 percent) versus IBR (15 percent).
One commenter believed that, as used in the regulations, the terms “charge,” “accrue,” and “capitalize” are unclear. The commenter expressed concerns that these rules could pose problems for loan servicers, or for borrowers dealing with issues around consolidation, economic hardship, and bankruptcy. Furthermore, the commenter believed that any confusion caused by the use of these terms may make it especially difficult for borrowers to make informed decisions when selecting repayment plans. The commenter proposed defining the terms “charge,” “accrue,” and “capitalize.”
Another commenter raised legal objections to proposed § 685.209(c)(2)(iii)(A), which would charge borrowers only half of the interest that accrues but is unpaid after the initial three-year period. According to this commenter, the proposed regulation conflicts with section 455(e)(5) of the HEA, which specifies that the balance due “shall equal the unpaid principal amount of the loan, any accrued interest . . .” The commenter believed that the Secretary's regulatory authority is limited to specifying details of the capitalization of this interest. The commenter also claimed this proposal is moot, as negatively amortized borrowers will have the accrued but unpaid interest forgiven at the end of the repayment term. The commenter believed that this proposed aspect of the REPAYE plan merely adds complexity to an already complicated repayment plan.
We believe the use of the terms “charge,” “accrue,” and “capitalize” in the regulations is clear and consistent with existing regulations and current operational processes. We see no need to define these longstanding student financial aid terms at this time.
We do not agree with the legal concerns raised by a commenter. Section 455(e)(5) of the HEA defines how to calculate the balance due on a loan repaid under the ICR plan but does not restrict the Secretary's discretion to define or limit the amounts used in calculating the balance. These regulations reflect the Secretary's regulatory authority to define those terms for purposes of the REPAYE plan.
We disagree with the suggestion that all negatively amortized loans will be forgiven at the end of the repayment period. The comment assumes a borrower in negative amortization will remain in that situation for the entire 20 or 25-year repayment period. However, a borrower's income can change significantly over that period of time. A borrower who recovers from the financial difficulties that put the borrower into negative amortization may resume making payments towards principal, and may repay the loan in its entirety by the end of the repayment period.
These commenters recommended eliminating the capitalization of interest while a borrower remains in the REPAYE plan because they believe that it adds unnecessary complexity and can increase costs for borrowers whose incomes are low for extended periods of time.
In the view of these commenters, given the lack of a standard payment cap and of a PFH requirement for initial eligibility for the REPAYE plan, PFH is no longer a relevant benchmark, but rather is simply a carryover from other IDR plans with different eligibility requirements. Since borrowers' monthly payments in the REPAYE plan are always based on income, there is no need to capitalize interest when their debt-to-income ratio falls below a particular threshold. Under the proposed regulations, the only reason the Department would have to calculate PFH would be to determine whether interest should capitalize at what will be an irrelevant threshold, adding, according to these commenters, unnecessary complexity for the Department and creating confusion for borrowers. The commenters postulated that removing interest capitalization within the REPAYE plan would simplify implementation of the program because the Department would no longer need to treat interest differently under specific scenarios or implement the current 10 percent interest capitalization cap in the REPAYE plan.
The commenters also argued that capitalizing interest when borrowers in the REPAYE plan lose their PFH status may increase costs for borrowers whose incomes are low for extended periods of time. The commenters said that borrowers with low incomes relative to their debt are more likely to have monthly payment amounts that do not cover accrued interest.
One commenter noted that capitalization is not required by Federal law. The commenter suggested that it is not necessary to charge borrowers additional interest and urged the Department to consider elimination of capitalization in the REPAYE plan, and in all Federal student loan programs.
One commenter noted that switching from one plan (such as IBR) to another (such as the REPAYE plan) would result in accrued interest capitalizing, and, as a result a borrower's monthly interest payments could increase significantly.
A commenter currently enrolled in IBR with interest that has accrued (but not been capitalized) due to negative amortization asked for clarification regarding what happens to this type of interest if one switches from IBR to REPAYE. The commenter asked if it would be capitalized before the REPAYE monthly payment amount is calculated or if the interest would remain uncapitalized.
Another commenter recommended that we not capitalize interest on borrowers switching into the REPAYE plan from a similar income-driven repayment plan. The commenter argued that if it makes sense for someone to switch to the REPAYE plan, any unpaid interest that has accumulated under those programs should not capitalize, since the borrower is simply switching from one income-driven repayment plan to another.
As noted by one commenter, under the IBR repayment plan, interest that is accrued but unpaid (due to the payment amount being lower than the total interest due) is capitalized into the loan balance only upon a borrower leaving the IBR plan or ceasing to have a PFH. Thus, as long as a borrower continues to have a PFH and is in the IBR plan, the accrued interest will not be capitalized. However, under the current wording of § 685.221(b)(4), if an existing borrower who has been repaying under the IBR plan elects to take advantage of the new REPAYE plan, he or she would suffer the negative consequence of triggering full capitalization of all interest accrued up to such time. The commenter contended that this could be a significant deterrent to many borrowers in taking advantage of the new REPAYE plan and a potential “trap for the unwary.” One commenter requested that we specify that interest that accrued under the IBR plan would not be capitalized for a borrower who switches from the IBR plan to the REPAYE plan. The commenter asserted that failing to allow borrowers to switch to the REPAYE plan without capitalizing accrued interest will create a significant hardship for many of the borrowers that the REPAYE plan is designed to help.
One commenter recommended allowing a one-time switch into the REPAYE plan without capitalizing interest for those that are eligible for the new REPAYE plan. They suggested that a deadline could be added to this one-time switch opportunity. The commenter felt that it is unfair to offer a new repayment plan to people who have already begun repayment, but then penalize them for using it.
One commenter requested that we not allow interest to capitalize retroactively when a PFH is no longer demonstrated. The commenter believed that this point is vague in the proposed regulation, but that interest should never capitalize retroactively. The commenter suggested that anyone could no longer have a PFH at any point (
One commenter suggested that student borrowers under the REPAYE plan receive a notice regarding accrued interest in certain circumstances. Specifically, the commenter recommended that the regulations require the Department to clearly describe the role of PFH in the REPAYE plan, notify a borrower when the Department determines that he or she no longer has a PFH, and explain to the borrower whether and how accrued interest will be capitalized in such circumstances.
Several commenters recommended ending capitalized interest entirely. In addition, commenters recommended changing the regulations, variously, to eliminate the accrual of interest, lower the accruing interest, freeze the accrual of interest, not accrue interest above minimal payments, waive accrued interest, or not accrue interest while the borrower is in school.
However, we have retained the requirement to capitalize interest at the time a borrower leaves the REPAYE plan. This is consistent with the treatment of accrued interest when a borrower leaves the IBR plan or the Pay As You Earn repayment plan. We also note that the removal of the provision for capitalizing interest when a borrower is determined to no longer have a PFH does not totally eliminate the possibility of interest capitalization while a borrower is in repayment under the REPAYE plan. As provided in § 685.202(b)(3), unpaid interest will be capitalized upon the expiration of a deferment or forbearance period.
As many commenters noted, if a borrower who is currently in the IBR plan or the Pay As You Earn repayment plan had accrued interest on his or her loan and chose to switch from the IBR plan or the Pay As You Earn repayment plan to the REPAYE plan, the interest would be capitalized at the time the borrower leaves the IBR plan or the Pay As You Earn repayment plan. Some commenters stated that this would be a deterrent to such borrowers entering the REPAYE plan. While this may be the case, we note that the primary goal of the REPAYE plan is to allow borrowers who do not qualify for the 10 percent IBR plan or the Pay As You Earn repayment plan to have access to an affordable income-driven repayment plan. In fact, we estimate that most borrowers in those repayment plans will stay in those repayment plans after the REPAYE plan becomes available. (See “Net Budget Impacts.”) Borrowers who are currently in the IBR plan or the Pay As You Earn repayment plan may determine that it is not in their financial interest to switch to the REPAYE plan. Since these borrowers are already on track to have their loans forgiven, we do not believe that it significantly disadvantages these borrowers to retain the requirement that accrued interest be capitalized for borrowers switching from one of those plans to the REPAYE plan. For the same reasons, we do not believe that allowing a one-time switch without capitalizing interest is warranted.
With regard to some of the other comments we received relating to capitalization of accrued interest:
• When accrued interest is capitalized, it is always done retroactively. Some event, such as leaving a particular repayment plan, triggers capitalization of all interest that has accrued up to that point.
• With the elimination of the requirement to capitalize unpaid interest when a borrower ceases to have a PFH, there will be no necessity for the Department to make an annual determination of PFH status, or provide the borrower a notification if the borrower does not have a PFH.
• Modifications to how interest accrues on Direct Loans, or the elimination of capitalization of interest altogether, are outside the scope of this regulatory action.
Another commenter recommended that the Department provide borrowers with accounts in good standing incentives for keeping loan payments current.
Under section 455(b)(8)(C) of the HEA, the Department has limited authority to provide payment incentives to certain categories of Direct Loan borrowers. The Department cannot expand on this statutory authority through our regulations.
In response to the commenters who noted that borrowers were previously able to provide the Department with multi-year consent to obtain their income information from the IRS, we note that when the process described by the commenters was in place, there was only one income-driven repayment plan (the original ICR Plan) and only one servicer for Direct Loans. After new income-driven repayment plans were established and the Department contracted with additional servicers for Direct Loans, the multi-year consent process was no longer feasible, due to the significant increased complexity.
As explained earlier in this discussion, we are working with the IRS and the Department of Treasury to address the issues that forced us to discontinue the prior multi-year consent process, so that a multi-year consent process will be possible for the REPAYE plan. As we do so, we will consider the issues raised by the commenters, including procedures for revocation of consent.
A few commenters expressed support for the Department's plan, announced in the preamble to the NPRM, to conduct a pilot to test enhanced messaging techniques that would help the Department determine whether the current process for notifying borrowers of the annual deadline for providing income documentation should be modified to prevent more borrowers from missing the deadline. One commenter urged the Department to inform the public of the results of the pilot, and to move forward as soon as possible to implement changes based on those results.
We further noted that, because those regulations have been in effect for less than two years, we did not believe there was sufficient evidence to conclude that the existing timeframes for borrowers to submit income documentation should be modified. This continues to be our view. However, as we also noted in the preamble to the NPRM, we have initiated a pilot project to determine if there may be more effective means of communicating information about the annual deadline to borrowers. The pilot project is still ongoing and will not be completed until after these final regulations are published. Once the project has been completed and the results have been analyzed, the Department will issue an announcement with more information.
The same commenter also believed that proposed § 685.209(c)(4)(vii)(D) may be confusing in the context of the lead-in language in proposed § 685.209(c)(4)(vii), which explains the requirements that apply to a borrower who wishes to return to the REPAYE plan after having been removed from that plan due to a failure to provide income information or after voluntarily leaving the plan. The commenter noted that the lead-in language in proposed § 685.209(c)(4)(vii) refers only to borrowers who have been removed from the REPAYE plan and placed on an alternative repayment plan due to a failure to provide income information by the specified annual deadline, yet proposed § 685.209(c)(4)(vii)(D) also covers borrowers who voluntarily chose to leave the plan.
The commenter proposed an alternative approach under which borrowers who miss the annual income documentation deadline would not be removed from the REPAYE plan but instead would remain on the REPAYE plan with a recalculated monthly payment equal to the higher of the 10-year standard repayment plan payment amount based on the borrower's outstanding loan balance at the time he or she entered the REPAYE plan, or the borrower's previous income-driven payment amount under the REPAYE plan based on the most recent income documentation provided. In addition, the commenter proposed that any payments made in the absence of updated income information would not count toward loan forgiveness under the REPAYE plan or the Public Service Loan Forgiveness Program. The commenter noted that excluding such payments from counting toward loan forgiveness would encourage borrowers to submit income documentation on time, and would help prevent borrowers who miss the deadline for providing the
The same commenter recommended that if the Department maintains the approach described in proposed § 685.209(c)(4)(vi), the calculation of the borrower's required monthly payment under the alternative repayment plan should be revised. Under proposed § 685.209(c)(4)(vi), the monthly payment amount under the alternative repayment plan would be the amount necessary to repay the borrower's loan in full within
One alternative suggested by the commenter was to allow borrowers who fail to recertify income to remain on the REPAYE plan with a recalculated monthly payment equal to the higher of the 10-year standard plan payment or the borrower's last income-driven payment amount, and to not count payments made without income documentation toward loan forgiveness under the REPAYE plan or the Public Service Loan Forgiveness Program. However, under this approach, there would be no basis under the law for not counting payments made without income documentation toward REPAYE or public service loan forgiveness. Payments made under an ICR plan are qualifying payments for loan forgiveness purposes under an ICR plan and under the Public Service Loan Forgiveness Program in accordance with section 455(e)(7)(B)(v) and (m)(1)(A)(iv) of the HEA. Under the commenter's proposed alternative approach, payments made without income documentation would still be payments made under the REPAYE plan (an income-contingent repayment plan) and therefore would have to be counted as qualifying payments for loan forgiveness under both the REPAYE plan and the Public Service Loan Forgiveness Program. This would be contrary to the Department's intent of providing a strong incentive for borrowers to provide updated income information by the specified annual deadline. We also note that the Department's approach is more favorable to borrowers than the commenter's alternative in that payments made under an alternative repayment plan will still count as qualifying payments toward income-driven loan forgiveness, if the borrower later returns to the REPAYE plan or another income-driven repayment plan.
In response to the commenter's observation that payments made by borrowers under the Pay As You Earn repayment plan after they have missed the annual income documentation deadline continue to count toward public service loan forgiveness, we note that under the Pay As You Earn repayment plan regulations, borrowers who do not submit their required income documentation by the annual deadline are not removed from the Pay As You Earn repayment plan. Rather, they remain on the Pay As You Earn repayment plan with a recalculated payment amount that is no longer based on their income. These recalculated payments are still made under the Pay As You Earn repayment plan and therefore count toward public service loan forgiveness. The commenter is correct in noting that there is no requirement in the Public Service Loan
A couple of commenters asked the Department to clarify whether payments that a borrower previously made under the IBR plan would continue to count toward public service loan forgiveness if the borrower later changes to the REPAYE plan.
One commenter said that the regulations for the REPAYE plan should allow borrowers who received loans prior to October 1, 2007 to qualify retroactively for public service loan forgiveness.
Section 685.219(c)(1)(iv)(B) of the regulations governing the Public Service Loan Forgiveness Program indicates that payments made under an income-contingent repayment plan in § 685.209 are qualifying payments. The REPAYE plan is one of the income-contingent repayment plans in § 685.209, meaning that payments made under that plan, if they otherwise meet the requirements of the Public Service Loan Forgiveness Program, would count as qualifying payments for public service loan forgiveness. We do not believe it is necessary to state in the REPAYE regulations themselves that payments made under that plan count toward public service loan forgiveness, since the appropriate place to describe what constitutes a qualifying payment for public service loan forgiveness is in the regulations that govern the Public Service Loan Forgiveness Program. We note that the regulations governing the Pay As You Earn, ICR, and IBR plans do not specify that payments made under those plans count toward public service loan forgiveness.
If a borrower who made qualifying public service loan forgiveness payments on an eligible Direct Loan Program loan under the IBR plan later begins repaying that loan under the REPAYE plan, the prior payments that were made under the IBR plan will still count toward public service loan forgiveness.
In response to the commenter who believed that the REPAYE plan regulations should allow borrowers who received loans prior to October 1, 2007 to qualify retroactively for public service loan forgiveness, we note that there is nothing in the law or regulations that precludes borrowers who received loans prior to October 1, 2007 from receiving public service loan forgiveness. However, in accordance with section 455(m)(1)(A) of the HEA, only payments made after October 1, 2007 may be counted toward the 120 qualifying payments required to receive public service loan forgiveness.
The commenters who objected to proposed § 685.209(c)(5)(ii)(A) and (B) believed that all borrowers who choose to repay their loans under the REPAYE plan should qualify for loan forgiveness after 20 years of repayment. The reasons cited by these commenters included the following:
• Providing a 20-year repayment period for borrowers with only undergraduate loans and a 25-year repayment period for borrowers with one or more loans obtained for graduate study is inequitable and may serve as a disincentive for individuals considering post-graduate education, and could lead some students to take out private loans to pay for graduate school.
• The proposed longer repayment period for borrowers with loans received for graduate study further penalizes graduate and professional students, who contribute significantly to the success of our Nation. Graduate and professional students have already been negatively impacted by recent statutory changes such as the loss of eligibility for subsidized loans and higher interest rates on unsubsidized loans.
• The proposed 25-year repayment period for any borrower who received loans for graduate study is a punitive measure for those who seek to further their academic studies, and is especially harmful for those who are required to obtain a graduate degree to secure employment in their field.
• The proposed regulations establish a “degree-based” repayment plan that requires a longer repayment period for individuals who borrowed to pay for graduate studies, without taking into consideration the total amount borrowed or ability to repay.
• The proposed regulations do not differentiate between borrowers who receive loans for graduate study, but do not ultimately complete a graduate program, and those who are able to complete a graduate degree. As a result, a student with undergraduate loan debt who begins a graduate program and takes out additional loans, but who is ultimately unable to finish the graduate program, will not qualify for loan forgiveness until after 25 years of qualifying repayment. In contrast, other borrowers with only undergraduate degrees will qualify for loan forgiveness after 20 years of qualifying repayment.
• Requiring a different repayment period depending on whether a borrower received only loans for undergraduate study or received one or more loans for graduate study further complicates the REPAYE plan and will be difficult to explain to borrowers.
• Many individuals are older when they begin graduate or professional study. Establishing a maximum 20-year repayment period under the REPAYE plan for all borrowers will help individuals focus sooner on other
Some commenters believed that a borrower's age should be taken into account when establishing the maximum repayment period under the REPAYE plan. A few commenters suggested that loan forgiveness should be provided to all borrowers after a repayment period of less than 20 years.
One commenter noted that in the preamble to the NPRM the Department emphasized its goal of targeting the REPAYE plan to the neediest borrowers and contended that extending the repayment period under the REPAYE plan to 25 years for anyone who received a loan for graduate or professional study may harm the neediest borrowers. The commenter specifically noted that high-income borrowers with graduate loan debt will be able to repay their loans in less than 20 years, while those with graduate loan debt and low earnings will be required to make five additional years of payments. The commenter suggested that a better way of targeting the benefits of the REPAYE plan to the neediest borrowers would be to provide a maximum 20-year repayment period for all borrowers and continue to cap the monthly payment amount at 10 percent of income, but make certain changes to the way the monthly payment amount is calculated so that higher-income borrowers would be more likely to repay their debt in full within 20 years.
A couple of commenters believed that, if the Department requires a longer repayment period for certain borrowers under the REPAYE plan, it would be preferable to have a 25-year repayment period only for a borrower's loans that were received for graduate or professional study, while any loans received for undergraduate study would have a 20-year repayment period. One commenter believed that this approach would mitigate the “cliff effect” of the proposed regulations that establishes a 25-year repayment period for all of a borrower's loans if even one loan was received for graduate study, and would be less likely to encourage borrowers to rely on private education loans or discourage students from pursuing graduate study.
One commenter suggested that the Department may have made an assumption that borrowers who obtained loans for graduate or professional study will have higher loan balances and therefore should repay their loans over a longer period of time, but noted that this is not always the case. As an example, the commenter cited the case of a borrower who received significant scholarship aid for both graduate and undergraduate study who might have a lower total loan balance than a student who only has loans that were obtained for an expensive undergraduate program. However, the borrower with both graduate and undergraduate loans would be required to repay for five more years than the undergraduate borrower.
Some commenters believed that the Department did not provide sufficient justification for requiring a longer repayment period for borrowers who received loans for graduate or professional study. One commenter contended that the preamble to the NPRM suggested that the Department and non-Federal negotiators believed that the availability of the Public Service Loan Forgiveness Program would provide a recourse to graduate and professional student borrowers, and asserted that, because the Public Service Loan Forgiveness Program is open to all Direct Loan borrowers, it is not an appropriate reason to require a longer repayment period for individuals who obtained loans for graduate or professional study.
One commenter expressed support for the Department's proposal to provide a maximum 20-year repayment period for borrowers with only undergraduate loans, but also believed that all borrowers, including those who take out loans for graduate study, should have access to income-driven repayment plans that provide for cancellation of any remaining loan balance after 20 years. The commenter noted that many critical professions, such as teaching, law, and medicine, require graduate degrees, and believed that imposing a maximum 25-year repayment period on borrowers who received loans for graduate study could have a substantial impact on their financial health.
We disagree with the commenters who believed that the 25-year repayment period is a punitive measure for those who take out loans for graduate or professional study, and could have a substantial impact on their financial health. We believe that the many benefits of the REPAYE plan, including the possibility of loan forgiveness, mitigate the longer repayment period for these borrowers.
We note that the approach described in the proposed regulations was suggested by non-Federal negotiators during the negotiated rulemaking sessions as an alternative to the Department's original proposal, which would have set the repayment period at 25 years for any borrower with more than $57,500 in outstanding loan debt. Although some non-Federal negotiators expressed concerns about the impact on graduate and professional students of the approach presented in the proposed regulations, all of the non-Federal negotiators ultimately supported this approach, noting that it was simpler than what the Department had originally proposed and avoided the consequence of an additional five years of repayment for any borrower with even one dollar in loan debt over the specified threshold.
With regard to the suggestions that the maximum repayment period under the REPAYE plan should in some way be based on the borrower's age or other life circumstances at the time they attend graduate school, or should be for a period of less than 20 years, we note that such approaches would be very costly to taxpayers. Similarly, the Department previously declined to consider the recommendation that the repayment period should be 20 years for all of a borrower's loans that were obtained for undergraduate study, and 25 years for any loans obtained for graduate study, noting that we had determined the costs to taxpayers associated with such an approach would be unacceptably high.
In response to the commenter who suggested that the Department's proposed approach may harm the neediest borrowers by requiring individuals with graduate loan debt and low earnings to repay for 25 years, while high-income borrowers with graduate loan debt will be able to repay their loans in less than 20 years, we note that a lower-income borrower would receive forgiveness of any remaining loan balance after 25 years of repayment, while a high-income borrower may end up repaying his her loans in full without
In response to the commenter who questioned the Department's assumption that borrowers who received loans for graduate study will have higher loan balances and therefore should repay their loans over a longer period, we agree that in some cases a borrower who received loans for graduate study may owe less than a borrower who received loans only for an undergraduate program. The commenter is correct in noting that in such cases the regulations would provide for a 25-year repayment period, despite the fact that the borrower may have smaller loan balances than other borrowers who received loans only for undergraduate study. However, a graduate student borrower with only a very modest amount of loan debt but a relatively high income would likely not be in repayment under the REPAYE plan for 25 years, but instead would repay his or her loans in full in less than 20 years.
With regard to the comment that the regulations do not distinguish between borrowers who receive loans for graduate study but are unable to complete their graduate studies, and those graduate student loan borrowers who complete their studies and receive graduate degrees, we note that the regulations make no such distinction for undergraduate borrowers, either. The 20- and 25-year REPAYE plan repayment periods are based on the type of study for which the borrower received the loan, not on whether the borrower obtained a degree. We believe that the 20-year repayment period is appropriate for undergraduate borrowers, who may not have a postsecondary education degree at all, and that the 25-year repayment period is appropriate for graduate-level borrowers who, at the very least, will have obtained an undergraduate degree.
We do not agree with the suggestion that the 25-year repayment period for graduate-level borrowers will lead those students to take out private loans rather than Direct Loans. The Direct Loan Program provides significant benefits to borrowers (including deferments, forbearances, and the possibility of forgiveness) that most private loan programs do not offer. For most borrowers, those benefits will far outweigh the costs associated with a 25-year repayment period as opposed to a 20-year repayment period.
Finally, neither the Department nor the non-Federal negotiators cited the availability of the Public Service Loan Forgiveness Program as justification for establishing a 25-year repayment period for borrowers who received any loans for graduate or professional study. As we explained in the preamble to the NPRM, some of the non-Federal negotiators said that the fact that graduate and professional students would have the option of pursuing loan forgiveness under the Public Service Loan Forgiveness Program after making 10 years of qualifying payments persuaded them to support the Department's proposed approach.
However, if the same borrower were to consolidate the FFEL Program loans received for graduate study with the Direct Loans received for undergraduate study and then select the REPAYE plan for the new Direct Consolidation Loan, the borrower would qualify for loan forgiveness after 25 years. This is because the Direct Consolidation Loan would have repaid loans that the borrower received as a graduate or professional student.
In response to the commenters who said that late payments should be counted, we note that otherwise qualifying monthly payments, as described in the preceding paragraph, do not have to be made on time to count toward loan forgiveness under the IDR plans. However, monthly payments do have to be made on time to count toward public service loan forgiveness.
Finally, we remind the commenters that calculated monthly payment amounts of $0 under any of the IDR plans, including the REPAYE plan, count as qualifying payments toward loan forgiveness under those plans, and also count as qualifying payments toward public service loan forgiveness if the borrower is employed full-time by an eligible public service organization during any month when the borrower's required monthly payment is $0. In addition, any month when a borrower is not required to make a payment due to receiving an economic hardship deferment counts as a qualifying payment toward loan forgiveness under all of the IDR plans.
One commenter further urged the Department to count qualifying pre-consolidation payments toward loan forgiveness under the Public Service Loan Forgiveness Program, as well as toward IDR plan loan forgiveness.
Two commenters noted that there are precedents for tracking payments made on loans that are repaid by a consolidation loan. As an example, the commenters pointed out that the Department's Federal loan servicers already track pre-consolidation Pay As You Earn and IBR plan payments on subsidized Stafford loans for purposes of determining a borrower's remaining eligibility for the three-year interest subsidy under the Pay As You Earn and IBR plans during periods when a borrower's calculated monthly payment is insufficient to cover all accruing interest on subsidized loans. The commenters also noted that the Department tracks pre-consolidation loans for purposes of determining the portion of a consolidation loan that qualifies for certain types of loan discharges, such as closed school or false certification discharges.
In response to the commenters who stated that there are precedents for tracking pre-consolidation payments, we note that the examples cited by the commenters represent special circumstances and do not involve the same degree of tracking that would be required if we were to track all of a borrower's pre-consolidation qualifying payments for purposes of loan forgiveness under the income-driven repayment plans and the Public Service Loan Forgiveness Program. In the case of the three-year interest subsidy period under the Pay As You Earn and IBR plans, tracking of pre-consolidation periods of repayment under the Pay As You Earn and IBR plans reflects the IBR statutory requirement (which was carried over to the Pay As You Earn repayment plan) that limits the subsidy period to the borrower's first three
We also note that tracking all of a borrower's qualifying pre-consolidation payments toward loan forgiveness under the IDR plans or the Public Service Loan Forgiveness Program would require much more than what is currently being done in connection with the Pay As You Earn and IBR plan interest subsidy period or loan forgiveness. It would not be possible to make the significant changes to consolidation loan processing that would be required to perform this increased level of tracking in time for the scheduled implementation of the REPAYE plan. Further, the Department would not have the capability to retroactively track qualifying pre-consolidation payments on existing Direct Consolidation Loans. Finally, we note that counting pre-consolidation qualifying payments toward IDR plan or public service loan
We note that certain factors may mitigate the impact of not counting pre-consolidation payments toward IDR plan or public service loan forgiveness. Going forward, more and more borrowers will have only Direct Loans and, if all of a borrower's loans are Direct Loans, loan consolidation currently provides no particular benefit to the borrower. Even without consolidating, Direct Loan borrowers have just one monthly payment for all of their Direct Loans, and by not consolidating borrowers preserve the qualifying payments made on the undergraduate loans.
We acknowledge that consolidation provides a means for borrowers with only FFEL Program loans or with a mix of FFEL and Direct Loan program loans to obtain benefits that are only available in the Direct Loan Program, such as the REPAYE plan and public service loan forgiveness, and that borrowers who consolidate FFEL Program loans will lose credit for any pre-consolidation payments they may have made under the IBR Plan. Such borrowers will need to weigh the potential advantages of consolidating versus keeping their current FFEL Program loans and continuing to make qualifying payments under the IBR Plan. We note that counting pre-consolidation payments for purposes of public service loan forgiveness would offer no benefit to borrowers who consolidate FFEL Program loans, since only qualifying payments made on Direct Loan Program loans are counted under the Public Service Loan Forgiveness Program. Borrowers who have both FFEL Program loans and Direct Loan Program loans on which they have made qualifying payments may wish to consider consolidating only their FFEL Program loans so as to avoid losing credit for qualifying payments made on the Direct Loans.
For the reasons explained above, we decline to accept the recommendation to count qualifying pre-consolidation loan payments toward loan forgiveness under the IDR plans and the Public Service Loan Forgiveness Program. However, during the next revision of the Direct Consolidation Loan Application and Promissory Note and related documents we will make changes to more prominently explain to consolidation loan applicants the consequences of consolidation for borrowers who have made qualifying payments on the loans they plan to consolidate.
Multiple commenters also noted the negative consequences of receiving a lump sum payment applied to a borrower's account when counted as one payment. The payment raises a borrower's income (and tax liability) for that year, resulting in higher monthly income-based payments the following year.
One commonality in the programs we address in our regulations is that the lump sum payments are submitted to the Department. In addition, similar to borrowers receiving lump sum payments associated with service in the Peace Corps or AmeriCorps, §§ 682.211(h)(2)(ii)(C) and 685.209(a)(9) provide that borrowers performing the type of service that would qualify them for a lump sum payment under the Student Loan Repayment Programs administered by the DOD are entitled to forbearance in anticipation of that third party payment. The Department will explore accepting additional lump sum payments from other agencies that are made directly to the Department.
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
This final regulatory action will have an annual effect on the economy of more than $100 million because the availability of the REPAYE plan is estimated to cost approximately $15.4 billion over loan cohorts from 1994 to 2025. Therefore, this action is “economically significant” and subject to review by OMB under section 3(f)(1) of Executive Order 12866. Notwithstanding this determination, we have assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action and determined that the benefits justify the costs.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations 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 these regulations are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action will not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In this regulatory impact analysis we discuss the need for regulatory action, the potential costs and benefits, net budget impacts, assumptions, limitations, and data sources, as well as regulatory alternatives we considered.
This regulatory impact analysis is divided into six sections. The “Need for Regulatory Action” section discusses why amending the current regulations is necessary.
The “Summary of Changes from the NPRM” section summarizes the most important revisions the Department made in these final regulations since publication of the NPRM. These changes were informed by the Department's consideration of the comments of 2,919 parties who submitted comments on the proposed regulations. The changes are intended to clarify the regulations and benefit the affected borrowers. In these final regulations, the Department is making 2 major changes in the proposed rules since the NPRM: (1) Using a definition of military service consistent with the SCRA; and (2) eliminating the loss of PFH status as a basis for interest capitalization. Additionally, we clarified that overpayments resulting from the application of the six percent interest rate to borrowers will be applied to future loan payments and refunded when all the borrower's loans are paid in full.
The “Discussion of Costs and Benefits” section considers the cost and benefit implications of these regulations for student loan borrowers, the public, and the Federal Government.
Under “Net Budget Impacts,” the Department presents its estimate that the regulations will have a significant net budget impact on the Federal Government of approximately $15.4 billion, $8.3 billion of which relates to existing loan cohorts from 1994 to 2015 and $7.1 billion relates to loan cohorts from 2016 to 2025 (loans that will be made in the future).
In “Alternatives Considered,” we describe other approaches the Department considered for key provisions of the regulations, including basing the determination of whether a borrower could qualify for loan forgiveness after 20 or 25 years on the amount borrowed, the treatment of married borrowers who file taxes separately, and the appropriate handling of borrowers who do not certify their income as required to remain in the REPAYE plan.
Finally, the “Regulatory Flexibility Act Certification” considers the effect of the regulations on small entities.
The regulations address several topics related to the administration of the title IV, HEA student aid programs and benefits and options for borrowers. The changes to the PRI appeals process to allow more timely challenges and appeals will provide institutions with more certainty about whether they will be subject to sanctions or the loss of title IV aid eligibility as a result of their CDRs. This increased certainty could encourage some institutions, especially community colleges with low borrowing rates, to continue participating in the title IV loan programs.
In the regulations the Department seeks to reduce the burden on military servicemembers and help ensure that those eligible for an interest rate reduction receive it.
As mentioned in the NPRM, the Department has developed these regulations in response to a June 9, 2014, Presidential Memorandum for the Secretary of Treasury and the Secretary of Education that instructed the Secretary to develop regulations that will allow additional students who borrowed Federal Direct Loans to cap their Federal student loan payments at 10 percent of their income. The Secretary was instructed to target this option towards borrowers who would otherwise struggle to repay their loans.
In 2012, the Department established a new income-contingent repayment plan called the Pay As You Earn repayment plan, which limited loan payments to 10 percent of the borrower's discretionary income and forgave any remaining balance after 20 years of qualifying payments for borrowers who first borrowed on or after October 1, 2007, with a loan disbursement made on or after October 1, 2011.
However, while the Pay As You Earn repayment plan offered relief to qualifying recent borrowers, it did not help millions of existing borrowers with older student loan debt. As the concerns about American student loan debt burdens continue to build, the Department seeks to offer payment relief to a larger group of borrowers than is currently possible under the Pay As You
As noted in the Consumer Finance Protection Bureau's 2013 report, “Public Service & Student Debt: Analysis of Existing Benefits and Options for Public Service Organizations,”
Under these regulations, the Department will count lump sum payments made by the DOD under certain loan repayment programs towards public service loan forgiveness.
The table below briefly summarizes the major provisions of the proposed regulations, including any significant changes from the proposed regulations in the NPRM.
These final regulations in large part affect loan repayment options and processes, so they would largely affect student borrowers, the Federal government, and loan servicers. The changes to the PRI appeal process affect institutions and the Federal government. The following discussion describes the costs and benefits of the final regulations by key topic area.
The REPAYE plan will make available to borrowers an IDR plan with payments based on 10 percent of discretionary income and, for borrowers with only undergraduate loans, a 20-year repayment period. In contrast, under the current regulations, only borrowers who received loans during specific time periods are eligible for an IDR plan with these benefits, and borrowers who had loans before FY 2008 cannot take advantage of those plans. Additionally, the REPAYE plan will not include the PFH requirement that is part of the Pay As You Earn repayment plan for the purpose of eligibility, further increasing access to IDR plans. The extension of the plan to a broader pool of borrowers would be a primary benefit of the REPAYE plan and would give student borrowers another tool to manage their loan payments. As detailed in the
In offering this increased access to the REPAYE plan, while targeting the plan to the neediest borrowers, some features were changed from Pay As You Earn repayment plan. In particular, there is no cap on the amount of the borrower's payment, so borrowers whose income results in a payment greater than under the standard repayment plan would have to pay the higher amount to maintain eligibility for future loan forgiveness. Borrowers who leave the REPAYE plan because they did not meet the requirement to annually recertify their income may reenter the REPAYE plan at any time, but must provide the income documentation for the relevant period and make additional payments if they would have paid more under the REPAYE plan.
To the extent the REPAYE plan reduces payments collected from borrowers, there is a cost to the Federal government. This is described in greater detail in the
The regulatory changes to require loan holders to proactively use the DOD's DMDC database and to allow borrowers to supply alternative evidence of military service through a form developed by the Secretary would benefit borrowers who are or have been in military service, reducing the burden on military servicemembers in obtaining application of the SCRA interest rate limit to their Federal student loans. These changes are intended to ensure the six percent interest rate limit is applied for the correct time period and that borrowers receive the benefit to which they are entitled.
Similarly, the treatment of lump sum payments made by the DOD on behalf of borrowers as the equivalent monthly payments for the purpose of public service loan forgiveness would ensure that borrowers who are otherwise entitled to public service loan forgiveness do not fail to qualify based on the way the DOD loan repayment programs are administered. Based on National Student Loan Data System (NSLDS) data, the Department estimates that less than one percent of student loan borrowers are affected by this issue.
The final regulations requiring guaranty agencies to provide information to FFEL Program borrowers transitioning from rehabilitating defaulted loans to loan repayment would benefit borrowers who struggle with repayment and could help to prevent those borrowers from defaulting again. The final regulations require guaranty agencies to inform borrowers about different repayment plan options and how the borrower can choose a plan. This assistance may help borrowers avoid additional negative credit events and allow them to enroll in a repayment plan that supports ongoing repayment of their loans.
Finally, the changes to the PRI challenges and appeals process would permit some institutions to challenge their rate in any year, not just the one that could result in a loss of eligibility. Some non-Federal negotiators and community college advocates suggested these changes would encourage more community colleges to participate in the title IV loan programs, thus giving students additional options to finance their education at those institutions.
The final regulations would have administrative costs for guaranty agencies and loan holders that are detailed in the
We estimate that these regulations will have a net budget impact of $15.4 billion, of which $8.3 billion is a modification for existing cohorts from 1994 to 2015 and $7.1 billion is related to future cohorts from 2016 to 2025. The change from the $15.3 billion estimated in the NPRM results from the lack of interest capitalization based on loss of PFH status. Consistent with the requirements of the Credit Reform Act of 1990 (CRA), budget cost estimates for the student loan programs reflect the estimated net present value of all future non-administrative Federal costs associated with a cohort of loans. A cohort reflects all loans originated in a given fiscal year.
These estimates were developed using the OMB's Credit Subsidy Calculator. The OMB calculator takes projected future cash flows from the Department's student loan cost estimation model and produces discounted subsidy rates reflecting the net present value of all future Federal costs associated with awards made in a given fiscal year. Values are calculated using a “basket of zeros” methodology under which each cash flow is discounted using the interest rate of a zero-coupon Treasury bond with the same maturity as that cash flow. To ensure comparability across programs, this methodology is incorporated into the calculator and used Government-wide to develop estimates of the Federal cost of credit programs. Accordingly, the Department believes it is the appropriate methodology to use in developing estimates for these regulations. In developing the following Accounting Statement, the Department also consulted with OMB on how to integrate our discounting methodology with the discounting methodology traditionally used in developing regulatory impact analyses.
Absent evidence of the impact of these regulations on student behavior, budget cost estimates were based on behavior as reflected in various Department data sets and longitudinal surveys listed under
As described in the NPRM, the budget impact associated with these final regulations comes from the establishment of the REPAYE plan, which extends a plan with payments based on 10 percent of the borrower's discretionary income to borrowers with no restriction on when they borrowed. The REPAYE plan will differ from the existing Pay As You Earn repayment plan in several ways to better target the plan to the neediest borrowers and to reduce the costs in some areas to allow for the extension of the plan to additional borrowers. Of the provisions described in the
To establish the baseline and to evaluate proposals related to IDR plans, the Department uses a micro-simulation model consisting of borrower-level data obtained by merging data on student loan borrowers derived from a sample of the NSLDS with income tax data from the IRS. Interest and principal payments are calculated according to the regulations governing the IDR plans, and the payments are adjusted for the likelihood of deferment or forbearance; default and subsequent collection; prepayment through consolidation;
As stated in the NPRM, in evaluating the costs of the REPAYE plan, the Department assumes that, if possible, borrowers will elect the most beneficial plan for which they are eligible. One commenter criticized the Department's estimate of the number of borrowers who will choose the REPAYE plan on the basis that the Department included borrowers switching from the Pay As You Earn repayment plan and or the IBR plan for new borrowers after July 1, 2014 into REPAYE. The commenter pointed out that both of these programs cost borrowers less than REPAYE in almost all scenarios, and borrowers in those plans would have no incentive to switch to REPAYE. For the purpose of our estimates, we assume that all borrowers who are eligible for the Pay As You Earn repayment plan or the IBR plan for new borrowers after July 1, 2014 select those plans. All borrowers estimated to choose the REPAYE plan are borrowers who are ineligible for the Pay As You Earn repayment plan or the IBR plan for new borrowers after July 1, 2014. Based on this, the Department estimates that for cohorts from 1994 to 2025, approximately six million borrowers will be eligible for the REPAYE plan. We maintain our estimate that approximately two million borrowers will choose the REPAYE plan. Borrowers assumed to choose REPAYE in future cohorts are those borrowers who have loans made prior to 2008 and who are thus not eligible for the Pay As You Earn repayment plan or the IBR plan.
The commenter also indicated that the estimate of two million borrowers who would choose REPAYE was overstated based on the number of borrowers in the existing IDR plans (0.60 million in ICR, 2.33 million in the IBR plan, and 0.53 million in the Pay As You Earn repayment plan). As discussed above, we do not assume borrowers in Pay As You Earn or IBR for new borrowers after July 1, 2014 will choose REPAYE. The commenter argues that those in ICR did not switch to IBR when doing so might reduce their monthly payments, so the Department should not assume they will switch into REPAYE. The commenter notes that many borrowers currently in IBR have monthly payments of zero, limiting their incentive to switch. According to the commenter, the prospect of a shorter time to forgiveness would not be an incentive to switch since the ultimate forgiveness that may come earlier in REPAYE is taxable and the borrower would trade loan debt for tax debt. The commenter estimates that no more than one million borrowers would choose REPAYE, half of the Department's estimate. The Department recognizes that predicting student borrower behavior and repayment plan choice is complicated. The Department's estimated number of REPAYE borrowers includes a number of borrowers who are not in repayment yet or who have not consolidated their loans to take advantage of an IDR plan and who therefore would not be in the portfolio the commenter evaluated. Additionally, as indicated in the NPRM, the Department assumes that borrowers choose the best plan for them. No borrowers with zero payments in IBR are assumed to change to REPAYE. While it is possible that some students will not switch into or take their optimal repayment plan, the Department believes that the estimate of two million borrowers is reasonable and that assumption provides a conservative estimate of the costs of the regulations.
Finally, the commenter contended that, while our estimate of the number of affected borrowers was, in their opinion, high, they believe the costs of REPAYE are underestimated by tens of billions of dollars based on the REPAYE payment being two-thirds of the IBR payment and the 20 instead of 25-year forgiveness period for undergraduate borrowers. The commenter concluded that this would result in REPAYE payments being 53 percent of what would have been received by the Department under IBR. However, the commenter's analysis does not account for several factors that reduce the difference between the present value of payments expected to be received under IBR and REPAYE including increased payments under REPAYE as borrowers' payments exceed the standard repayment cap. Additionally, many borrowers are not in the plan for the full term as used in the commenter's comparison, and therefore we are collecting smaller payments for a longer period of time, reducing the difference in net present value. The difference in total payments over the life of the loan is further reduced in any year that borrowers with incomes below 150 percent of the poverty line have zero payments under both plans.
When the assumption for loan forgiveness is increased as a result of a policy, the cash flow impact is a reduction in principal and interest payments. The subsidy cost is derived from comparing the baseline payments to the policy payments (on a net present value basis) and comparing the two resulting subsidy rates. The outlays are calculated by subtracting the new subsidy rate with the policy cash flows from the baseline subsidy rate and multiplying by the volume for the cohort. As stated above, compared to the baseline, the availability of the REPAYE plan is estimated to cost approximately $15.4 billion, of which $8.3 billion is a modification for existing cohorts from 1994 to 2015 and $7.1 billion is related to future cohorts from 2016 to 2025 as shown in Table 2. The change from the estimate of $15.3 in the NPRM results from the additional $80 million estimated cost of eliminating capitalization related to partial financial hardship status.
The other provisions of the regulations are not estimated to have a significant net budget impact. The changes to the SCRA servicing requirements so that lenders and loan servicers utilize the authoritative DOD database to ensure the SCRA interest rate limit is applied appropriately and allowing for alternative evidence will make it easier for eligible borrowers to receive the benefit of the SCRA interest rate limit. However, it does not extend eligibility to a new set of borrowers and the costs associated with eligible borrowers will be in the budget baseline for the President's FY 2016 budget. The treatment of lump-sum payments for borrowers who qualify for loan repayment under DOD loan repayment programs may allow some additional borrowers to qualify for public service loan forgiveness. Less than one percent of borrowers are expected to be affected by this change, and the lump sum payment must equal the amount owed by the borrower for however many months for which the borrower receives credit toward forgiveness, so the change in cash flows from those estimated to receive public service loan forgiveness for military careers is not expected to be significant. We believe it is appropriate to allow these borrowers to receive credit towards months of payments for public service loan forgiveness in this instance so active duty military members receive the forgiveness to which they are entitled and already estimated to receive. The PRI challenges and appeals will expand the number of such actions the Department will be involved with and may result in some schools retaining their participation in title IV, HEA programs, but we do not expect this to affect program volumes and costs in a significant way. Finally, the requirement that guaranty agencies provide information to assist borrowers in transitioning from rehabilitation of defaulted loans to loan repayment should benefit borrowers and may result in improved repayment behavior, but we do not expect this to materially affect the amount collected from borrowers.
In developing these estimates, a wide range of data sources were used, including data from the NSLDS; operational and financial data from Department of Education and Department of the Treasury systems; and data from a range of surveys conducted by the National Center for Education Statistics such as the 2008 National Postsecondary Student Aid Survey and the 2004 Beginning Postsecondary Student Survey. Data from other sources, such as the U.S. Census Bureau, were also used.
As required by OMB Circular A–4 (available at
In the NPRM, we discussed the regulatory alternatives that were considered. Further, as discussed in the
The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. These
The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. We display the valid OMB control numbers assigned to the collections of information in these regulations at the end of the affected sections of the regulations.
Sections 668.16, 668.204, 668.208, 668.214, 682.202, 682.208, 682.405, 685.208, and 682.209 contain information collection requirements. Under the PRA, the Department has submitted a copy of these sections, related forms, and Information Collection Requests to OMB for its review.
The regulations will permit an institution to bring a timely PRI challenge or appeal in any year the institution's draft or official CDR is less than or equal to 40 percent, but greater than or equal to 30 percent, for any of the three most recently calculated fiscal years (for challenges, counting the draft rate as the most recent rate), provided that the institution has not brought a PRI challenge or appeal from that rate before, and that the institution has not previously lost eligibility or been placed on provisional certification based on that rate. In addition, if the institution brought a successful PRI challenge with respect to a draft CDR that was less than or equal to the corresponding official CDR, this will preclude provisional certification and loss of eligibility from being imposed based on the official CDR, without the institution needing to bring a PRI appeal in later years.
We estimate that the change in the need to appeal a final CDR on the basis of PRI when a challenge to a comparable rate on the same basis was successful will prevent 50 appeals per year—15 from public institutions, 10 from not-for-profit institutions, and 25 from proprietary institutions. We have previously estimated that an appeal takes each institution 1.5 hours per response.
Under §§ 668.16, 668.204, 668.208, and 668.214, therefore, for public institutions, we estimate burden will decrease by 23 hours per year (15 public institutions multiplied by 1 appeal multiplied by 1.5 hours per appeal). For not-for-profit institutions, we estimate burden will decrease by 15 hours per year (10 not-for-profit institutions multiplied by 1 appeal multiplied by 1.5 hours per appeal). For proprietary institutions, we estimate that burden will decrease by 38 hours per year (25 proprietary institutions multiplied by 1 appeal multiplied by 1.5 hours per appeal).
Collectively, the total decrease in burden under §§ 668.16, 668.204, 668.208, and 668.214 will be 76 hours under OMB Control Number 1845–0022.
Under § 682.208(j)(1), (6), and (7), a FFEL Program loan holder, including a guaranty agency, must match information in its servicing system, including the identifiers of borrowers and endorsers, against the DOD's DMDC database to determine whether borrowers are eligible to receive an interest rate reduction under the SCRA.
Under § 682.208(j)(5), any FFEL Program loan holder, including a guaranty agency, must notify a borrower if an interest rate reduction under the SCRA is applied as a result of the loan holder having received evidence of the borrower's or endorser's qualifying status having begun within 30 days of the date that the loan holder applies the interest rate reduction.
Under § 682.208(j)(8), any FFEL Program loan holder, including a guaranty agency, must refund overpayments resulting from the application of the SCRA interest rate reduction to a loan that was in the process of being paid in full through loan consolidation at the time the interest rate reduction was applied by returning the overpayment to the holder of the consolidation loan.
Under § 682.208(j)(9), any FFEL Program loan holder, including a guaranty agency, must refund overpayments resulting from the application of the SCRA interest rate reduction by returning the overpayment to the borrower.
Section 682.208(j) will result in a shift in burden from borrowers to loan holders. Under the current regulations, a borrower is required to submit a written request for his or her loan holder to apply the SCRA interest rate limit and a copy of his or her military orders to support the request. Because, under the regulations, a borrower will no longer be required to submit a written request or a copy of his or her military orders, the burden on borrowers will be almost completely eliminated. While borrowers will still be able to submit other evidence that they qualify for the SCRA interest rate limit and loan holders will be required to evaluate that evidence, the Department has no data on the likelihood that erroneous or missing data in the DMDC database will give rise to the need for a borrower to submit alternative evidence of his or her military service. However,
However, because the Department plans to create a form for borrowers to use to certify their military service in cases in which the borrower believes that the information in the DMDC database is incorrect, we estimate that 59 FFEL Program borrowers will submit such a form, and that it will take a borrower 20 minutes (0.33 hours) per response. We estimate that this form will increase burden by 20 hours (59 borrowers multiplied by 0.33 hours per response).
For § 682.208(j)(1), (6), and (7), we estimate that it will take each loan holder approximately three hours per month to extract applicable data from their servicing system, format it to conform to the DMDC database file layout, perform quality assurance, submit the file to the DMDC database, retrieve the result, import it back into their systems, perform quality assurance, and then, to the extent that a borrower or endorser is or was engaged in qualifying military service, apply, extend, or end the SCRA interest rate limitation.
Under § 682.208(j)(1), (6), and (7), therefore, for public loan holders, we estimate that this regulation will increase burden by 1,908 hours per year (53 public loan holders multiplied by 3 hours per month multiplied by 12 months). For not-for-profit loan holders, we estimate that this regulation will increase burden by 5,436 hours per year (151 not-for-profit loan holders multiplied by 3 hours per month multiplied by 12 months). For proprietary loan holders, we estimate that this regulation will increase burden by 115,344 hours per year (3,204 proprietary loan holders multiplied by 3 hours per month multiplied by 12 months).
For § 682.208(j)(8), if the application of the SCRA interest rate limit of six percent results in an overpayment on a loan that is subsequently paid in full through consolidation, the underlying loan holder must return the overpayment to the holder of the consolidation loan. We estimate that it will take each loan holder one hour per borrower to refund overpayments in this circumstance. We estimate that, over the past six months, 69 percent of the borrowers who consolidated loans included a loan with an interest rate in excess of 6 percent. We further estimate that 0.1 percent of those consolidation loans will create an overpayment that will require a loan holder to issue a refund to the holder of the consolidation loan.
Under § 682.208(j)(8), therefore, for public loan holders, we estimate that this regulation will increase burden by 4 hours per year (557,341 borrowers with loans held by public loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 69 percent of borrowers who have consolidated multiplied by 0.1 percent). For not-for-profit loan holders, we estimate that this regulation will increase burden by 19 hours per year (2,738,171 borrowers with loans held by not-for-profit loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 69 percent of borrowers who have consolidated multiplied by 0.1 percent). For proprietary loan holders, we estimate that this regulation will increase burden by 73 hours per year (10,524,463 borrowers with loans held by proprietary loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 69 percent of borrowers who have consolidated multiplied by 0.1 percent).
For § 682.208(j)(9), we estimate that it will take each loan holder one hour per borrower to refund overpayments for borrowers for whom the application of the SCRA interest rate limit caused their loan to be overpaid. We estimate that an overpayment will result for 0.05 percent of borrowers who have the SCRA interest rate limit applied.
Under § 682.208(j)(9), therefore, for public loan holders, we estimate that this regulation will increase burden by 3 hours per year (557,341 borrowers with loans held by public loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 0.05 percent). For not-for-profit loan holders, we estimate that this regulation will increase burden by 14 hours per year (2,738,171 borrowers with loans held by not-for-profit loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 0.05 percent). For proprietary loan holders, we estimate that this regulation will increase burden by 53 hours per year (10,524,463 borrowers with loans held by proprietary loan holders multiplied by 1 percent of borrowers who are eligible for the SCRA interest rate limit multiplied by 0.05 percent).
Collectively, the total increase in burden under § 682.405 will be 122,873 hours under OMB Control Number 1845–0093. The burden associated with the form (20 hours) will be associated with OMB Control Number 1845–0135.
Under § 682.405(b)(1)(xi) and (c), guaranty agencies will be required to provide information to borrowers with whom they have entered into a loan rehabilitation agreement to inform them of the repayment options available to them upon successfully completing their loan rehabilitation.
We estimate that it will take a guaranty agency 10 minutes (0.17 hours) per borrower to send the required communication to a borrower and respond to borrower inquiries generated by the communication.
Under § 682.405(c), therefore, for public guaranty agencies, we estimate that this regulation will increase burden by 6,514 hours per year (38,315 borrowers multiplied by 0.17 hours per borrower). For not-for-profit guaranty agencies, we estimate that this regulation will increase burden by 14,752 hours per year (86,776 borrowers multiplied by 0.17 hours per borrower).
Collectively, the total increase in burden under § 682.405 will be 21,266 hours under OMB Control Number 1845–0020.
Section 685.202(a)(11) will shift the burden from borrowers to the Secretary. Under the current regulations, borrowers are required to submit a
However, because the Department has created a form for borrowers to provide a certification of the borrower's authorized official in cases where the borrower believes the DMDC database is inaccurate or incomplete, we estimate that 141 Direct Loan borrowers will submit such a form, and that it will take a borrower 20 minutes (0.33 hours) per response. We estimate that this form will increase burden by 47 hours (141 borrowers multiplied by 0.33 hours per response).
Collectively, the total decrease in burden for § 685.202 will be 681 hours under OMB Control Number 1845–0094. This will eliminate all but 47 hours of burden in OMB Control Number 1845–0094. The burden associated with the form (47 hours) will be associated with OMB Control Number 1845–0135.
Under § 685.209(c)(4), a borrower selecting the REPAYE plan will apply for the plan, provide documentation of his or her income and, as applicable, his or her spouse's income, and provide a certification of family size. The borrower must provide this information annually. If a borrower who repays his or her Direct Loans under the REPAYE plan leaves the plan and subsequently wishes to return to the REPAYE plan, the borrower must provide income documentation and family size certifications for each year in which the borrower was not repaying his or her loans under the REPAYE plan after having left the plan before being allowed to re-enter the REPAYE plan.
Collectively, the total increase in burden for §§ 685.208 and 685.209 will be 967,186 hours (2,930,868 additional borrowers multiplied by 0.33 hours per response), of which 412,500 hours (1,250,000 additional borrowers multiplied by 0.33 hours per response) will be attributable to the REPAYE plan under OMB Control Number 1845–0102. Collectively, the total increase in burden under §§ 685.208 and 685.209 under OMB Control Number 1845–0021 will be 967,186 hours.
Consistent with the discussion above, the following chart describes the sections of the regulations involving information collections, the information being collected, and the collections that the Department will submit to OMB for approval and public comment under the PRA, and the estimated costs associated with the information collections. The monetized net costs of the increased burden on institutions, lenders, guaranty agencies, and borrowers, using wage data developed using U.S. Bureau of Labor Statistics data, available at
The total burden hours and change in burden hours associated with each OMB Control number affected by the regulations follows:
In the NPRM we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You may also access documents of the Department published in the
Administrative practice and procedure, Aliens, Colleges and universities, Consumer protection, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
Administrative practice and procedure, Colleges and universities, Loan programs-education, Reporting and recordkeeping requirements, Student aid, Vocational education.
For the reasons discussed in the preamble, the Secretary of Education amends parts 668, 682, and 685 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1001–1003, 1070g, 1085, 1088, 1091, 1092, 1094, 1099c, and 1099c–1, unless otherwise noted.
The revisions and addition read as follows:
(m) * * *
(2) * * *
(ii) * * *
(B) If it has timely filed an appeal under § 668.213 after receiving the second such rate, and the appeal is either pending or successful; or
(C)(
(
(iv) If the institution has 30 or fewer borrowers in the three most recent cohorts of borrowers used to calculate its cohort default rate under subpart N of this part, we will not provisionally certify it solely based on cohort default rates;
(v) If a rate that would otherwise potentially subject the institution to provisional certification under paragraphs (m)(1)(ii) and (m)(2)(i) of this section is calculated as an average rate, we will not provisionally certify it solely based on cohort default rates;
(c) * * *
(1)(i) * * *
(ii) Subject to § 668.208(b), you may challenge a potential loss of eligibility under § 668.206(a)(2), based on any cohort default rate that is less than or equal to 40 percent, but greater than or equal to 30 percent, for any of the three most recently calculated fiscal years, if your participation rate index is equal to or less than 0.0625 for that cohort's fiscal year.
(iii) You may challenge a potential placement on provisional certification under § 668.16(m)(2)(i), based on any cohort default rate that fails to satisfy the standard of administrative capability in § 668.16(m)(1)(ii), if your participation rate index is equal to or less than 0.0625 for that cohort's fiscal year.
(5) If we determine that you qualify for continued eligibility or full certification based on your participation rate index challenge, you will not lose eligibility under § 668.206 or be placed on provisional certification under § 668.16(m)(2)(i) when your next official cohort default rate is published. Unless that next official cohort default rate is less than or equal to your draft cohort default rate, a successful challenge that is based on your draft cohort default rate does not excuse you from any other loss of eligibility or placement on provisional certification. However, if your successful challenge under paragraph (c)(1)(ii) or (iii) of this section is based on a prior, official cohort default rate, and not on your draft cohort default rate, or if the next official cohort default rate published is less than or equal to the draft rate you successfully challenged, we also excuse you from any subsequent loss of eligibility, under § 668.206(a)(2), or placement on provisional certification, under § 668.16(m)(2)(i), that would be based on that official cohort default rate.
(a) * * *
(2) * * *
(ii) A participation rate index challenge or appeal submitted under this section and § 668.204 or § 668.214;
(b) * * *
(2) You may not challenge, request an adjustment to, or appeal a draft or official cohort default rate, under § 668.204, § 668.209, § 668.210, § 668.211, § 668.212, or § 668.214, more than once on that cohort default rate.
(3) You may not challenge, request an adjustment to, or appeal a draft or official cohort default rate, under § 668.204, § 668.209, § 668.210, § 668.211, § 668.212, or § 668.214, if you previously lost your eligibility to participate in a Title IV, HEA program, under § 668.206, or were placed on provisional certification under § 668.16(m)(2)(i), based entirely or partially on that cohort default rate.
(a)
(2) Subject to § 668.208(b), you do not lose eligibility under § 668.206(a)(2) if you bring an appeal in accordance with this section that demonstrates that your participation rate index for any of the three most recent cohorts' fiscal years is equal to or less than 0.0625.
(3) Subject to § 668.208(b), you are not placed on provisional certification under § 668.16(m)(2)(i) based on two cohort default rates that fail to satisfy the standard of administrative capability in § 668.16(m)(1)(ii) if you bring an appeal in accordance with this section that demonstrates that your participation rate index for either of those two cohorts' fiscal years is equal to or less than 0.0625.
(c) * * *
(2) Notice under § 668.205 of a cohort default rate that equals or exceeds 30 percent but is less than or equal to 40 percent.
20 U.S.C. 1071—1087–4, unless otherwise noted.
(a) * * *
(8)
(j)(1) Effective July 1, 2016, a loan holder is required to use the official electronic database maintained by the Department of Defense, to—
(i) Identify all borrowers who are military servicemembers and who are eligible under § 682.202(a)(8); and
(ii) Confirm the dates of the borrower's military service status and begin, extend, or end, as applicable, the use of the SCRA interest rate limit of six percent.
(2) The loan holder must compare its list of borrowers against the database maintained by the Department of Defense at least monthly to identify servicemembers who are in military service status for the purpose of determining eligibility under § 682.202(a)(8).
(3) A borrower may provide the loan holder with alternative evidence of military service status to demonstrate eligibility if the borrower believes that the information contained in the Department of Defense database is inaccurate or incomplete. Acceptable alternative evidence includes—
(i) A copy of the borrower's military orders; or
(ii) The certification of the borrower's military service from an authorized official using a form approved by the Secretary.
(4)(i) When the loan holder determines that the borrower is eligible under § 682.202(a)(8), the loan holder must ensure the interest rate on the borrower's loan does not exceed the SCRA interest rate limit of six percent.
(ii) The loan holder must apply the SCRA interest rate limit of six percent for the longest eligible period verified with the official electronic database, or alternative evidence of military service status received under paragraph (j)(3) of this section, using the combination of evidence that provides the borrower with the earliest military service start date and the latest military service end date.
(iii) In the case of a reservist, the loan holder must use the reservist's notification date as the start date of the military service period.
(5) When the loan holder applies the SCRA interest rate limit of six percent to a borrower's loan, it must notify the borrower in writing within 30 days that the interest rate on the loan has been reduced to six percent during the borrower's period of military service.
(6)(i) For PLUS loans with an endorser, the loan holder must use the official electronic database to begin, extend, or end, as applicable, the SCRA interest rate limit of six percent on the loan based on the borrower's or endorser's military service status, regardless of whether the loan holder is currently pursuing the endorser for repayment of the loan.
(ii) If both the borrower and the endorser are eligible for the SCRA interest rate limit of six percent on a loan, the loan holder must use the earliest military service start date of either party and the latest military service end date of either party to begin, extend, or end, as applicable, the SCRA interest rate limit.
(7)(i) For joint consolidation loans, the loan holder must use the official electronic database to begin, extend, or end, as applicable, the SCRA interest rate limit of six percent on the loan if either of the borrowers is eligible for the SCRA interest rate limit under § 682.202(a)(8).
(ii) If both borrowers on a joint consolidation loan are eligible for the SCRA interest rate limit of six percent on a loan, the loan holder must use the earliest military service start date of either party and the latest military service end date of either party to begin, extend, or end, as applicable, the SCRA interest rate limit.
(8) If the application of the SCRA interest rate limit of six percent results in an overpayment on a loan that is subsequently paid in full through consolidation, the underlying loan holder must return the overpayment to the holder of the consolidation loan.
(9) For any other circumstances where application of the SCRA interest rate limit of six percent results in an overpayment of the remaining balance on the loan, the loan holder must refund the amount of that overpayment to the borrower.
(10) For purposes of this section, the term “military service” means—
(i) In the case of a servicemember who is a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard—
(A) Active duty, meaning full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
(B) In the case of a member of the National Guard, including service under a call to active service, which means service on active duty or full-time National Guard duty, authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days for purposes of responding to a national emergency declared by the President and supported by Federal funds;
(ii) In the case of a servicemember who is a commissioned officer of the Public Health Service or the National Oceanic and Atmospheric Administration, active service; and
(iii) Any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause.
The addition and revisions reads as follows:
(b) * * *
(1) * * *
(vi) * * *
(B) Of the amount of any collection costs to be added to the unpaid principal of the loan when the loan is
(2) * * *
(ii) If the guaranty agency has been unable to sell the loan, the guaranty agency must assign the loan to the Secretary.
(c) A guaranty agency must make available to the borrower—
(1) During the loan rehabilitation period, information about repayment plans, including the income-based repayment plan, that may be available to the borrower upon rehabilitating the defaulted loan and how the borrower can select a repayment plan after the loan is purchased by an eligible lender or assigned to the Secretary; and
(2) After the successful completion of the loan rehabilitation period, financial and economic education materials, including debt management information.
(b) * * *
(3)
(A) The rate established by the terms of the borrower's original promissory note; or
(B) In the case of a loan for which a judgment has been obtained, the rate provided for by State law.
(ii) If the guaranty agency determines that the borrower is eligible for the interest rate limit of six percent under § 682.202(a)(8), the interest rate described in paragraph (b)(3)(i) shall not exceed six percent.
20 U.S.C 1070g, 1087a,
(a) * * *
(11)
(i) In the case of a servicemember who is a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard—
(A) Active duty, meaning full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
(B) In the case of a member of the National Guard, including service under a call to active service, which means service on active duty or full-time National Guard duty, authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days for purposes of responding to a national emergency declared by the President and supported by Federal funds;
(ii) In the case of a servicemember who is a commissioned officer of the Public Health Service or the National Oceanic and Atmospheric Administration, active service; and
(iii) Any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause.
The revision and addition read as follows:
(a) * * *
(1) * * *
(i) * * *
(D) The income-contingent repayment plans in accordance with paragraph (k)(2) or (3) of this section; or
(k) * * *
(3) Under the income-contingent repayment plan described in § 685.209(c), a borrower's required monthly payment is limited to no more than 10 percent of the amount by which the borrower's AGI exceeds 150 percent of the poverty guideline applicable to the borrower's family size, divided by 12, unless the borrower's monthly payment amount is adjusted in accordance with § 685.209(c)(4)(vi)(E).
The revision and additions read as follows:
(a) * * *
(1)
(6) * * *
(i) * * *
(F) Made monthly payments under the alternative repayment plan described in paragraph (c)(4)(v) of this section prior to changing to a repayment plan described under this section or § 685.221;
(b) * * *
(3) * * *
(iii) * * *
(B) * * *
(
(c)
(1)
(i)
(A) Separated from his or her spouse; or
(B) Unable to reasonably access the income information of his or her spouse.
(ii)
(iii)
(A) Live with the borrower; and
(B) Receive more than half their support from the borrower and will continue to receive this support from the borrower for the year the borrower certifies family size. Support includes money, gifts, loans, housing, food, clothes, car, medical and dental care, and payment of college costs; and
(iv)
(2)
(ii) The Secretary adjusts the calculated monthly payment if—
(A) Except for borrowers provided for in paragraph (c)(2)(ii)(B) of this section, the borrower's eligible loans are not solely Direct Loans, in which case the Secretary determines the borrower's adjusted monthly payment by multiplying the calculated payment by the percentage of the total outstanding principal amount of the borrower's eligible loans that are Direct Loans;
(B) Both the borrower and borrower's spouse have eligible loans, in which case the Secretary determines—
(
(
(
(C) The calculated amount under paragraph (c)(2)(i) or (c)(2)(ii)(A) or (B) of this section is less than $5.00, in which case the borrower's monthly payment is $0.00; or
(D) The calculated amount under paragraph (c)(2)(i) or (c)(2)(ii)(A) or (B) of this section is equal to or greater than $5.00 but less than $10.00, in which case the borrower's monthly payment is $10.00.
(iii) If the borrower's monthly payment amount is not sufficient to pay the accrued interest on the borrower's loan—
(A) Except as provided in paragraph (c)(2)(iii)(B) of this section, for a Direct Subsidized Loan or the subsidized portion of a Direct Consolidation Loan, the Secretary does not charge the borrower the remaining accrued interest for a period not to exceed three consecutive years from the established repayment period start date on that loan under the REPAYE plan. Following this three-year period, the Secretary charges the borrower 50 percent of the remaining accrued interest on the Direct Subsidized Loan or the subsidized portion of a Direct Consolidation Loan.
(B) For a Direct Unsubsidized Loan, a Direct PLUS Loan made to a graduate or professional student, the unsubsidized portion of a Direct Consolidation Loan, or for a Direct Subsidized Loan or the subsidized portion of a Direct Consolidation Loan for which the borrower has become responsible for accruing interest in accordance with § 685.200(f)(3), the Secretary charges the borrower 50 percent of the remaining accrued interest.
(C) The three-year period described in paragraph (c)(2)(iii)(A) of this section—
(
(
(
(iv) Any unpaid accrued interest is capitalized at the time a borrower leaves the REPAYE plan.
(v) If the borrower's monthly payment amount is not sufficient to pay any of the principal due, the payment of that principal is postponed until the borrower leaves the REPAYE plan or the Secretary determines the borrower does not have a partial financial hardship.
(vi) A borrower who no longer wishes to repay under the REPAYE plan may change to a different repayment plan in accordance with § 685.210(b). A borrower who changes to a different repayment plan in accordance with this paragraph or paragraph (c)(4)(vi)(C) of this section may return to the REPAYE plan pursuant to the requirements in paragraphs (c)(4)(vi)(D) and (E) of this section.
(3)
(A) Accrued interest.
(B) Collection costs.
(C) Late charges.
(D) Loan principal.
(ii) The borrower may prepay all or part of a loan at any time without penalty, as provided under § 685.211(a)(2).
(iii) If the prepayment amount equals or exceeds a monthly payment amount of $10.00 or more under the repayment schedule established for the loan, the Secretary applies the prepayment consistent with the requirements of § 685.211(a)(3).
(iv) If the prepayment amount exceeds a monthly payment amount of $0.00 under the repayment schedule established for the loan, the Secretary applies the prepayment consistent with the requirements of paragraph (c)(3)(i) of this section.
(4)
(B) If the borrower's AGI is not available, or if the Secretary believes that the borrower's reported AGI does not reasonably reflect the borrower's current income, the borrower must provide other documentation to verify income.
(C) Unless otherwise directed by the Secretary, the borrower must annually certify the borrower's family size. If the borrower fails to certify family size, the Secretary assumes a family size of one for that year.
(ii) After making the determination described in paragraph (c)(4)(i)(A) of this section for the initial year that the borrower selects the REPAYE plan and for each subsequent year that the borrower remains on the plan, the Secretary sends the borrower a written notification that provides the borrower with—
(A) The borrower's scheduled monthly payment amount, as calculated under paragraph (c)(2) of this section, and the time period during which this scheduled monthly payment amount will apply (annual payment period);
(B) Information about the requirement for the borrower to annually provide the information described in paragraph (c)(4)(i) of this section, if the borrower chooses to remain on the REPAYE plan after the initial year on the plan, and an explanation that the borrower will be notified in advance of the date by which the Secretary must receive this information;
(C) An explanation of the consequences, as described in paragraphs (c)(4)(i)(C) and (c)(4)(v) and (vi) of this section, if the borrower does not provide the required information; and
(D) Information about the borrower's option to request, at any time during the borrower's current annual payment period, that the Secretary recalculate the borrower's monthly payment amount if the borrower's financial circumstances have changed and the income amount that was used to calculate the borrower's current monthly payment no longer reflects the borrower's current income. If the Secretary recalculates the borrower's monthly payment amount based on the borrower's request, the Secretary sends the borrower a written notification that includes the information described in paragraphs (c)(4)(ii)(A) through (D) of this section.
(iii) For each subsequent year that a borrower remains on the REPAYE plan, the Secretary notifies the borrower in writing of the requirements in paragraph (c)(4)(i) of this section no later than 60 days and no earlier than 90 days prior to the date specified in paragraph (c)(4)(iii)(A) of this section. The notification provides the borrower with—
(A) The date, no earlier than 35 days before the end of the borrower's annual payment period, by which the Secretary must receive all of the documentation described in paragraph (c)(4)(i) of this section (annual deadline); and
(B) The consequences if the Secretary does not receive the information within 10 days following the annual deadline specified in the notice, as described in paragraphs (c)(2)(iv), (c)(4)(v), and (c)(4)(vi) of this section.
(iv) If a borrower who is currently repaying under another repayment plan selects the REPAYE plan but does not provide the documentation described in paragraph (c)(4)(i)(A) or (B) of this section, the borrower remains on his or her current repayment plan.
(v) Except as provided in paragraph (c)(4)(vii) of this section, if a borrower who is currently repaying under the REPAYE plan remains on the plan for a subsequent year but the Secretary does not receive the documentation described in paragraph (c)(4)(i)(A) or (B) of this section within 10 days of the specified annual deadline, the Secretary removes the borrower from the REPAYE plan and places the borrower on an alternative repayment plan under which the borrower's required monthly payment is the amount necessary to repay the borrower's loan in full within the earlier of—
(A) Ten years from the date the borrower begins repayment under the alternative repayment plan; or
(B) The ending date of the 20- or 25-year period as described in paragraphs (c)(5)(i) and (ii) of this section.
(vi) If the Secretary places the borrower on an alternative repayment plan in accordance with paragraph (c)(4)(v) of this section, the Secretary sends the borrower a written notification containing the borrower's new monthly payment amount and informing the borrower that—
(A) The borrower has been placed on an alternative repayment plan;
(B) The borrower's monthly payment amount has been recalculated in accordance with paragraph (c)(4)(v) of this section;
(C) The borrower may change to another repayment plan in accordance with § 685.210(b);
(D) The borrower may return to the REPAYE plan if he or she provides the documentation, as described in paragraph (c)(4)(i)(A) or (B) of this section, necessary for the Secretary to calculate the borrower's current REPAYE plan monthly payment amount and the monthly amount the borrower would have been required to pay under the REPAYE plan during the period when the borrower was on the alternative repayment plan or any other repayment plan;
(E) If the Secretary determines that the total amount of the payments the
(F) If the borrower returns to the REPAYE plan or changes to the Pay As You Earn repayment plan described in paragraph (a) of this section, the income-contingent repayment plan described in paragraph (b) of this section, or the income-based repayment plan described in § 685.221, any payments that the borrower made under the alternative repayment plan after the borrower was removed from the REPAYE plan will count toward forgiveness under the REPAYE plan or the other repayment plans under paragraph (a) or (b) of this section or § 685.221; and
(G) Payments made under the alternative repayment plan described in paragraph (c)(4)(v) of this section will not count toward public service loan forgiveness under § 685.219.
(vii) The Secretary does not take the action described in paragraph (c)(4)(v) of this section if the Secretary receives the documentation described in paragraph (c)(4)(i)(A) or (B) of this section more than 10 days after the specified annual deadline, but is able to determine the borrower's new monthly payment amount before the end of the borrower's current annual payment period.
(viii) If the Secretary receives the documentation described in paragraph (c)(4)(i)(A) or (B) of this section within 10 days of the specified annual deadline—
(A) The Secretary promptly determines the borrower's new scheduled monthly payment amount and maintains the borrower's current scheduled monthly payment amount until the new scheduled monthly payment amount is determined.
(
(
(
(B) The new annual payment period begins on the day after the end of the most recent annual payment period.
(5)
(ii)(A) A borrower whose loans being repaid under the REPAYE plan include only loans the borrower received as an undergraduate student or a consolidation loan that repaid only loans the borrower received as an undergraduate student may qualify for forgiveness after 20 years.
(B) A borrower whose loans being repaid under the REPAYE plan include a loan the borrower received as a graduate or professional student or a consolidation loan that repaid a loan received as a graduate or professional student may qualify for forgiveness after 25 years.
(iii) The Secretary cancels any remaining outstanding balance of principal and accrued interest on a borrower's Direct Loans that are being repaid under the REPAYE plan after—
(A) The borrower has made the equivalent of 240 or 300, as applicable, qualifying monthly payments as defined in paragraph (c)(5)(iv) of this section; and
(B) Twenty or 25 years, as applicable, have elapsed, beginning on the date determined in accordance with paragraph (c)(5)(v) of this section.
(iv) For the purpose of paragraph (c)(5)(iii)(A) of this section, a qualifying monthly payment is—
(A) A monthly payment under the REPAYE plan, including a monthly payment amount of $0.00, as provided under paragraph (c)(2)(ii)(C) of this section;
(B) A monthly payment under the Pay As You Earn repayment plan described in paragraph (a) of this section, the income-contingent repayment plan described in paragraph (b) of this section, or the income-based repayment plan described in § 685.221, including a monthly payment amount of $0.00;
(C) A monthly payment made under—
(
(
(
(D) A month during which the borrower was not required to make a payment due to receiving an economic hardship deferment on his or her eligible Direct Loans.
(v) For a borrower who makes payments under the REPAYE plan, the beginning date for the 20-year or 25-year repayment period is—
(A) If the borrower made payments under the Pay As You Earn repayment plan described in paragraph (a) of this section, the income-contingent repayment plan described in paragraph (b) of this section, or the income-based repayment plan described in § 685.221, the earliest date the borrower made a payment on the loan under one of those plans; or
(B) If the borrower did not make payments under the Pay As You Earn repayment plan described in paragraph (a) of this section, the income-contingent repayment plan described in paragraph (b) of this section, or the income-based repayment plan described in § 685.221—
(
(
(
(
(
(vi) Any payments made on a defaulted loan are not qualifying monthly payments and are not counted toward the 20-year or 25-year forgiveness period.
(vii)(A) When the Secretary determines that a borrower has satisfied the loan forgiveness requirements under paragraph (c)(5) of this section on an eligible loan, the Secretary cancels the outstanding balance and accrued interest on that loan. No later than six months prior to the anticipated date that the borrower will meet the forgiveness requirements, the Secretary sends the borrower a written notice that includes—
(
(
(
(B) The Secretary determines when a borrower has met the loan forgiveness requirements in paragraph (c)(5) of this section and does not require the borrower to submit a request for loan forgiveness.
(C) After determining that a borrower has satisfied the loan forgiveness requirements, the Secretary—
(
(
(
(b) * * *
(2) * * *
(ii) If a borrower changes repayment plans, the repayment period is the period provided under the borrower's new repayment plan, calculated from the date the loan initially entered repayment. However, if a borrower changes to the income-contingent repayment plan under § 685.209(a), the income-contingent repayment plan under § 685.209(b), the income-contingent repayment plan under § 685.209(c), or the income-based repayment plan under § 685.221, the repayment period is calculated as described in § 685.209(a)(6)(iii), § 685.209(b)(3)(iii), § 685.209(c)(5)(v), or § 685.221(f)(3), respectively.
The addition reads as follows:
(c) * * *
(3) The Secretary considers lump sum payments made on behalf of the borrower through the student loan repayment programs under 10 U.S.C. 2171, 2173, 2174, or any other student loan repayment programs administered by the Department of Defense, to be qualifying payments in accordance with paragraph (c)(2) of this section for each year that a lump sum payment is made.
The addition reads as follows:
(f) * * *
(1) * * *
(vi) Made monthly payments under the alternative repayment plan described in § 685.209(c)(4)(v) prior to changing to a repayment plan described under § 685.209 or this section;
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD has adopted as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011, as amended by the NDAA for FY 2013. This final rule allows DoD to consider the impact of supply chain risk in specified types of procurements related to national security systems.
Effective October 30, 2015.
Mr. Dustin Pitsch, telephone 571–372–6090.
DoD published an interim rule in the
Eight respondents submitted public comments in response to the interim rule.
DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:
1. Language is added to the rule to clarify that section 806 authority is only applicable when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, including clarification of the prescriptions for DFARS provision 252.239–7017, Notice of Supply Chain Risk, and DFARS clause 252.239–7018, Supply Chain Risk.
2. Guidance on the use of an evaluation factor regarding supply chain risk is modified to require the inclusion of the evaluation factor when acquiring information technology, whether as a service or as a supply that is a covered system, is a part of a covered system, or is in support of a covered system. Additional text regarding an evaluation factor has been added at DFARS 212.301, 213.106–1, 214.201–5, and 214.503–1.
3. DFARS clause 252.239–7018, Supply Chain Risk, is changed as follows—
a. Paragraph (b), is modified to state that the contractor shall mitigate supply chain risk in the provision of supplies and services to the Government; and
b. Paragraph (c) is removed as the clause will no longer contain a requirement to flow down the clause to subcontractors.
d. Other Applications
Three of these respondents commented on the need for notification to excluded offerors of their post-exclusion status. One respondent commented that notification to excluded offerors of their post-exclusion status and the reasons for exclusion will allow them to take steps to remedy those flaws before future opportunities. One respondent suggested that if a determination is made that “less intrusive measures are not reasonably available [short of exclusion] to reduce such supply chain risk,” the rule should require that the notion of providing notice to the offeror has been explicitly considered and deemed unreasonable before a decision to exclude has been finalized. Another respondent suggested that DFARS 215.503 and 215.506 should be clarified to ensure that unsuccessful offerors are provided information demonstrating that DOD complied with the requirements of section 806(b) and (c) in making the determination to limit the disclosure of information relating to the basis for carrying out a covered procurement action.
One of these respondents commented that clarification/definition of the term “appropriate parties” as encompassing the impacted offeror/bidder/contractor would ensure that the impacted offeror/bidder/contractor is advised, at a minimum, that it has been impacted by a supply chain risk determination under this DFARS section, and that any information that can be shared about the “basis for carrying out” the decision “consistent with the requirements of national security” will be shared with that entity. Another respondent commented that while the rule requires notice by the authorized individual to “appropriate parties” to the extent needed to execute a covered procurement action and to DoD and other Federal agencies, it makes no provision to provide notice to other Federal contractors that might be impacted by the exclusion.
Consistent with 41 U.S.C. 1905, 1906, and 1907, the Director Defense Procurement and Acquisition Policy (DPAP), determined that it would not be in the best interest of the United States to exempt acquisitions not greater than the SAT and acquisitions of commercials items, including COTS items, from the applicability of section 806 of the NDAA for FY 2011 as amended by section 806 of the NDAA for FY 2013.
41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations. DoD has made that determination, therefore this rule does apply below the SAT.
Given that the requirements of section 806 of the NDAA for FY 2011 and section 806 of the NDAA for FY 2013 were enacted to protect the supply chain, which in turn protects NSS from malicious actions, DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts below the SAT, as defined at FAR 2.101. An exception for contracts for the acquisition below the SAT would exclude contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law.
41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if
Given that the requirements of section 806 of the NDAA for FY 2011 and section 806 of the NDAA for FY 2013 were enacted to protect the supply chain, which in turn protects NSS from malicious actions, DoD has determined that it is in the best interest of the Federal Government to apply the rule to contracts for the acquisition of commercial items, including COTS items, as defined at FAR 2.101. An exception for contracts for the acquisition of commercial items, including COTS items, would exclude contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law.
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.
A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
The objective of this final rule is to implement in the Defense Federal Acquisition Regulation Supplement protection against risks to the supply chain affecting National Security Systems (NSS). The legal basis for this final rule is section 806 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) of 2011 (Pub. L. 111.383), as amended by section 806 of the NDAA for FY 2013 (Pub. L. 112–239). Congress has recognized a growing concern for risks to the supply chain for technology contracts supporting the Department of Defense (DoD). Congress has defined supply chain risk as the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of such system (see 806(e)(4) of Pub. L. 111–383).
This final rule calls for contractors providing information technology to DoD, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, to mitigate supply chain risk to the supplies and services being provided to the Government. It also enables agencies to exclude sources identified as having a supply chain risk from consideration for award of a covered contract, in order to minimize the potential risk for supplies and services purchased by DoD to maliciously degrade the integrity and operation of sensitive information technology systems. Ultimately, DoD anticipates significant savings to taxpayers by reducing the risk of unsafe products entering our supply chain, which pose serious threats or risks to sensitive government information technology systems.
No comments were received in response to the initial regulatory flexibility analysis.
This rule applies to contractors providing the Government with information technology that qualifies as a covered system or covered item of supply. This includes purchases of commercial items, including commercial off-the-shelf items, and contracts not greater than the simplified acquisition threshold. While it is not possible to estimate the number of small businesses impacted, DoD does not expect this final rule to have a significant economic impact on a substantial number of contractors, since (1) the rule applies only when acquiring information technology that is part of a covered system or in support of a covered system and (2) the authority provided by the rule is expected to be invoked very infrequently.
This rule does not require any specific reporting, recordkeeping or compliance requirements.
No significant economic impact on small businesses is anticipated; however, the final rule does have a modified applicability for the provision and clause created by the rule. Instead of being prescribed for all information technology acquisitions the provision and clause will only apply to acquisitions for information technology that is a covered system or covered item of supply. This will significantly reduce the number of acquisitions to which the provision and clause will apply.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Accordingly, DoD adopts as final the interim rule published at 78 FR 69268 on November 18, 2013, with the following changes:
41 U.S.C. 1303 and 48 CFR chapter 1.
(1) For purposes of this definition, equipment is used by an agency if the equipment is used by the agency directly or is used by a contractor under
(i) Its use; or
(ii) To a significant extent, its use in the performance of a service or the furnishing of a product.
(2) The term “information technology” includes computers, ancillary equipment (including imaging peripherals, input, output, and storage devices necessary for security and surveillance), peripheral equipment designed to be controlled by the central processing unit of a computer, software, firmware and similar procedures, services (including support services), and related resources.
(3) The term “information technology” does not include any equipment acquired by a contractor incidental to a contract.
Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
(2) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
The addition and revisions read as follows:
(c) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
(f) * * *
(xv) * * *
(C) Use the provision at 252.239–7017, Notice of Supply Chain Risk, as prescribed in 239.7306(a), to comply with section 806 of Public Law 111–383.
(D) Use the clause at 252.239–7018, Supply Chain Risk, as prescribed in 239.7306(b), to comply with section 806 of Public Law 111–383.
(a)(2) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
(c) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
(a)(4) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301.
(c) * * *
(v) Include an evaluation factor regarding supply chain risk (see subpart 239.73) when acquiring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined in 239.7301. For additional guidance see PGI 215.304(c)(v).
Notwithstanding FAR 39.001, this part applies to acquisitions of information technology, including national security systems.
The addition reads as follows:
The revisions read as follows:
Subject to 239.7304, the individuals authorized in 239.7303 may, in the course of procuring information technology, whether as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system—
(d) * * *
(2) * * *
(i) Notify appropriate parties of action taken under paragraphs (a) through (d) of this section and the basis for such action only to the extent necessary to effectuate the action;
(a) Insert the provision at 252.239–7017, Notice of Supply Chain Risk, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, for information technology, whether acquired as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined at 239.7301.
(b) Insert the clause at 252.239–7018, Supply Chain Risk, in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for information technology, whether acquired as a service or as a supply, that is a covered system, is a part of a covered system, or is in support of a covered system, as defined at 239.7301.
In solicitations and contracts for information technology, whether acquired as a service or as a supply, that is a covered system or covered item of supply as those terms are defined at 239.7301, consider the need for a consent to subcontract requirement regarding supply chain risk (see subpart 239.73). For additional guidance see PGI 244.201–1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to remove Cuba from the definition of “state sponsor of terrorism” in two DFARS clauses. This rule implements the Department of Department of State Public Notice: 9162, Rescission of Determination Regarding Cuba.
Effective October 30, 2015.
Ms. Kyoung Lee, telephone 571–372–6093.
This final rule amends DFARS clause 252.225–7049, Prohibition on Acquisition of Commercial Satellite Services from Certain Foreign Entities—Representations, and clause 252.225–7050, Disclosure of Ownership or Control by the Government of a Country that is a State Sponsor of Terrorism, by removing Cuba from the definition of “state sponsor of terrorism” in these clauses. This rule implements the Department of State Public Notice: 9162, Rescission of Determination Regarding Cuba, announcing removal of Cuba from the U.S. list of state sponsors of terrorism, effective May 29, 2015. This action was based upon the Presidential Report of April 14, 2015, to Congress, indicating the Administration's intent to rescind the designation of Cuba as a state sponsor of terrorism, including the certification that Cuba has not provided any support for international terrorism during the previous six months, and that Cuba has provided assurance that it will not support acts of international terrorism in the future.
The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707, Publication of Proposed Regulations. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is only implementing the Department of State Public Notice: 9162, Rescission of Determination Regarding Cuba, announced on June 4, 2015, and, as such, the rule does not have a significant cost or administrative impact on contractors or offerors.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41 U.S.C. 1707 does not require publication for public comment.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 252 is amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add Montenegro and New Zealand as newly designated countries under the World Trade Organization Government Procurement Agreement.
Effective October 30, 2015.
Ms. Tresa Sullivan, telephone 571–372–6089.
On July 15, 2015, Montenegro became a party to the World Trade Organization Government Procurement Agreement (WTO GPA). New Zealand became party to the WTO GPA on August 12, 2015. The Trade Agreements Act (19 U.S.C. 2501
Effective July 15, 2015, because Montenegro became a party to the WTO GPA and because the U.S. Trade Representative has determined that Montenegro will provide appropriate reciprocal competitive Government procurement opportunities to United States products and services, the U.S. Trade Representative published a notice on July 10, 2015, in the
Effective August 12, 2015, New Zealand became party to the WTO GPA, and because the U.S. Trade Representative has determined that New Zealand will provide appropriate reciprocal competitive Government procurement opportunities to United States products and services, the U.S. Trade Representative published a notice on August 12, 2015, in the
FAR 25.003 defines WTO GPA countries by listing the parties to the WTO GPA, and defines “designated country” as a WTO GPA country, a Free Trade Agreement country, a least developed country, or a Caribbean Basin country. Montenegro and New Zealand are now WTO GPA countries and are designated countries, as determined by the U.S. Trade Representative; therefore, this rule adds Montenegro and New Zealand to the list of WTO GPA countries within the definition of “designated country” at DFARS 252.225–7017, Photovoltaic Devices; 252.225–7021, Trade Agreements—Basic, and 252.225–7021 Trade Agreements—Alternate II; and 252.225–7045, Balance of Payments Program—Construction Material Under Trade Agreements—Basic, and 252.225–7045, Balance of Payments Program—Construction Material Under Trade Agreements—Alternates I, II, and III.
The statute that applies to the publication of the FAR is 41 U.S.C. 1707, Publication of Proposed Regulations. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is informative only. Under the rule, Montenegro and New Zealand are now WTO GPA countries and will provide appropriate reciprocal competitive procurement opportunities to United States products and services and suppliers of such products and services. As such, the rule is not expected to have a significant cost or administrative impact on contractors or offerors.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision within the meaning of FAR 1.501–1, and 41 U.S.C. 1707 does not require publication for public comment.
The Paperwork Reduction Act does apply, because the rule affects the certification and information collection requirement in the provisions at DFARS 252.225–7018, Photovoltaic Devices-Certificate and 252.225–7020, Trade Agreements Certificate, currently approved under OMB clearance 0704–0229 (expiring March 31, 2017, DFARS Part 225, Foreign Acquisition, and associated clauses). DFARS provisions 252.225–7018 and 252.225–7020 rely on the definition of “designated country” in DFARS 252.225–7017 and 252.225–7021, which now includes Montenegro and New Zealand. The impact of this rule, however, is negligible.
Therefore, 48 CFR part 252 is amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes.
Effective October 30, 2015.
Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301–3060. Telephone 571–372–6115; facsimile 571–372–6094.
This final rule amends the DFARS as follows—
1. Directs contracting officers to additional DFARS Procedures, Guidance, and Information (PGI) by adding a cross reference at DFARS 201.106 to the PGI list of information collection and recordkeeping requirements that have been approved by the Office of Management and Budget for DFARS requirements;
2. Directs contracting officers to DFARS PGI coverage by adding a reference at DFARS 206.305 to provide further guidance concerning justification and approval documents;
3. Updates cross references at DFARS 208.404(a)(ii), 216.505(1), and 237.170–2(b) by removing “217.78” and adding “217.7” in each place to conform to changes made in the
4. Removes references at DFARS 215.404–76 and DFARS 222.101–3–70 to obsolete internal DoD reporting requirements;
5. Conforms the DFARS subpart 222.13 heading to the Federal Acquisition Regulation (FAR) heading;
6. Updates, at DFARS 222.1310(a)(1), the title of FAR clause 52.222–35 to conform to the FAR title;
7. Updates hyperlinks at DFARS 225.301–4(2) and 252.225–7040; and
8. Corrects a typographical error at DFARS 225.7002–3.
Government procurement.
Therefore, 48 CFR parts 201, 206, 208, 215, 216, 222, 225, 237, and 252 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
See PGI 201.106 for a list of the information collection and recordkeeping requirements contained in this regulation that have been approved by the Office of Management and Budget.
See PGI 206.305 for further guidance on the requirements for preparing, obtaining approval, and posting justification and approval documents for contracts awarded using the authority of FAR 6.302–2.